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PREFACE

The third edition of this book was inspired by the authors desire to help prepare the law students in their quest to become members of the legal profession. It contains not only the most recent laws pertaining to Family Law, but also the most recent and relevant decisions of the Supreme Court. It has been designed in a very simple way so that the reader will easily understand the law and jurisprudence cited. Undoubtedly, it will help not only law students but bar candidates, lawyers, judges, and laymen as well.

Ed Vincent S. Albano Ed Vincent A. Albano, Jr. Myla Khristabelle A. Albano-Pua

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DEDICATION
This simple work is warmly and sincerely dedicated to the couple who gave me life, my departed parents, Guillerma Soriano and Andres V. Albano. To my loving wife, Lilian A. Albano as well as her departed parents, Juan R. Ahorro and Manuela N. Gozar. To our pogi the first Vinci. And to our precious grandson, the sheer sight of whom takes away all our stress, Sean Vincent DR. Albano.

Ed Vincent S. Albano

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For my ever supportive wife Sheila del Rosario Albano and to the apple of the eyes, our first-born, Sean Vincent DR. Albano, this book is affectionately dedicated.

ED VINCENT A. ALBANO, JR.

This humble endeavor is wholeheartedly dedicated to my dearest husband, Engr. Carlo Magno P. Pua, whose patience for me is beyond measure.

MYLA KHRISTABELLE A. ALBANO-PUA

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TABLE OF CONTENTS
THE CIVIL CODE (R.A. No. 386)

Preliminary Title .................................................................... Chapter 1. Effect and Application of Laws ................... Chapter 2. Human Relations ......................................... BOOK I PERSONS Title I CIVIL PERSONALITY ........................................................ Chapter 1. General Provisions ...................................... Chapter 2. Natural Persons .......................................... Chapter 3. Juridical Persons ......................................... Title II CITIZENSHIP AND DOMICILE ....................................... THE FAMILY CODE OF THE PHILIPPINES (E.O. 209 as amended by E.O. 277) Title I MARRIAGE ........................................................................... Chapter 1. Requisites of Marriage ................................ Chapter 2. Marriages Exempt from the License Requirement .......................................................... Chapter 3. Void and Voidable Marriages ......................
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1 1 65

177 177 184 191

193

215 215 276 282

Title II LEGAL SEPARATION ......................................................... Title III RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE ............................................... Title IV PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE ............................................... Chapter 1. General Provisions ...................................... Chapter 2. Donations By Reason of Marriage .............. Chapter 3. System of Absolute Community.................. Sec. 1. General Provisions ................................... Sec. 2. What Constitutes Community Property . Sec. 3. Charges Upon and Obligations of the Absolute Community ....................... Sec. 4. Ownership, Administration, Enjoyment and Disposition of the Community Property ............................................ Sec. 5. Dissolution of Absolute Community Regime .............................................. Sec. 6. Liquidation of the Absolute Community Assets and Liabilities ...................... Chapter 4. Conjugal Partnership of Gains ................... Sec. 1. Sec. 2. Sec. 3. Sec. 4. General Provisions ................................... Exclusive Property of Each Spouse ......... Conjugal Partnership Property ............... Charges Upon and Obligations of the Conjugal Partnership ............ Sec. 5. Administration of the Conjugal Partnership Property ....................... Sec. 6. Dissolution of Conjugal Partnership Regime .............................................. Sec. 7. Liquidation of the Conjugal Partnership Assets and Liabilities ...................... Chapter 5. Separation of Property of the Spouses and Administration of Common Property by One Spouse During the Marriage ................................
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386

412

426 426 433 444 444 447 449

452 455 463 469 469 471 484 492 503 512 516

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Chapter 6. Regime of Separation of Property ............... Chapter 7. Property Regime of Unions Without Marriage ................................................................ Title V THE FAMILY ......................................................................... Chapter 1. The Family as an Institution ...................... Chapter 2. The Family Home ........................................ Title VI PATERNITY AND FILIATION .......................................... Chapter 1. Legitimate Children .................................... Chapter 2. Proof of Filiation .......................................... Chapter 3. Illegitimate Children ................................... Chapter 4. Legitimated Children .................................. Title VII ADOPTION ........................................................................... Title VIII SUPPORT .............................................................................. Title IX PARENTAL AUTHORITY ................................................... Chapter 1. General Provisions ...................................... Chapter 2. Substitute and Special Parental Authority ................................................................ Chapter 3. Effect of Parental Authority Upon the Persons of the Children ......................................... Chapter 4. Effect of Parental Authority Upon the Property of the Children ....................................... Chapter 5. Suspension or Termination of Parental Authority ................................................................

525 527

548 548 558

569 569 589 623 638

646

680

693 693 714 729 744 746

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Title X EMANCIPATION AND AGE OF MAJORITY .................. Title XI SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW ................................................. Chapter 1. Scope of Application .................................... Chapter 2. Separation in Fact Between Husband and Wife ................................................................. Chapter 3. Incidents Involving Parental Authority ..... Chapter 4. Other Matters Subject to Summary Proceedings ............................................................ Title XII FINAL PROVISIONS .......................................................... Title XIII USE OF SURNAMES ........................................................... Title XIV ABSENCE .............................................................................. Chapter 1. Provisional Measures in Case of Absence .............................................................. Chapter 2. Declaration of Absence ................................ Chapter 3. Administration of the Property of the Absentee ...................................................... Chapter 4. Presumption of Death ................................. Chapter 5. Effect of Absence Upon the Contingent Rights of the Absentee .......................................... Title XV CIVIL REGISTER ................................................................ 787 772 760 758 754 754 754 756 757 751

772 775 777 778 783

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THE CIVIL CODE R.A. No. 386


Preliminary Title
Chapter 1 Effect and Application of Laws Article 1. This Act shall be known as the Civil Code of the Philippines. (n) Concept of Law. Law, in its general sense (derecho), is defined as the science of moral laws based on the rational nature of man, which governs his free activity for the realization of his individual and social ends, and which by its very nature is demandable and reciprocal. (1 Sanchez Roman 3). In its specific sense (ley), it is defined as a rule of conduct, just, obligatory, promulgated by legitimate authority, and of common observance and benefit. (Ibid.). Concept of Civil Law. Civil law is defined as the mass of precepts which determines and regulates those relations of assistance, authority and obedience existing among members of a family as well as among members of a society for the protection of private interests. (1 Sanchez Roman 70). Concept of Civil Code. A Civil Code is defined as a collection of laws, which regulates the private relations of the members of civil society, determining the respective rights and obligations, with reference to persons, things and civil acts. (1 Tolentino, Civil Code, p. 10, 1974 ed.).
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Art. 2

Sources of the Philippine Civil Code. The sources of the Civil Code of the Philippines are the following: (1) (2) Civil Code of Spain of 1889; Codes and laws of other countries, such as Spain, the various States of the United States of America, like California and Louisiana, France, Argentina, Mexico, Switzerland, England and Italy; Judicial decisions of the Supreme Court of the Philippines, of the U.S.A., Spain and other countries; Philippine laws or statutes such as the Code of Civil Procedure (Act No. 190), the Rules of Court, the Marriage Law (Act No. 3613), The Divorce Law (Act No. 2710), the Family Code (E.O. No. 229, as amended by E.O. No. 227), and the Inter-Country Adoption Law (R.A. No. 8043); Works of jurists and commentators of various nations; Filipino customs and traditions; and The Code Commission itself. (See: Report of the Code Commission, pp. 2-3).

(3) (4)

(5) (6) (7)

Article 2. Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines unless it is otherwise provided. This Code shall take effect one year after such publication. (As amended by E.O. No. 200). (1a) Rules on effectivity of laws. From a reading of the provisions of Article 2 of the New Civil Code, as amended by Executive Order No. 200, a law shall take effect on the sixteenth day. This is so because in counting a period, the first day shall be excluded and the last day shall be included. (Art. 13, NCC). Under E.O. No. 200, a law can now take effect if published in a newspaper of general circulation. This is a departure from the old rule. The reason for the law is that, newspapers could better perform the function of communicating the laws to the people as they are easily available, have a wider readership and come out regularly. (Taada vs. Tuvera, December 29, 1986).

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THE CIVIL CODE CHAPTER I EFFECT AND APPLICATION OF LAWS

The phrase unless otherwise provided means not the publication, but it refers to the date of effectivity. The phrase does not dispense with publication. So, if a law provides that it shall take effect immediately, there is still a need for its publication. It can likewise provide that it shall take effect one year after its publication. The requirement of publication goes into the due process clause. For, it would amount to lack of due process if a law would take effect without it being published. Once published the people are presumed to have knowledge of the law, even if they have not read it. Presumptive knowledge is sufficient. Actual knowledge is not necessary for as long as the people comply with it as a rule of conduct. Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day period shall be shortened or extended. For example, the Civil Code did not become effective after fifteen days from its publication in the Official Gazette but one year after its publication. The general rule did not apply because it was otherwise provided. (Taada vs. Tuvera, G.R. No. 63915, 29 December 86). But while the law may shorten the period, the requirement of publication is still indispensable. Thus, the law may provide that it shall take effect after five (5) days following the completion of its publication. The publication clause cannot be dispensed with. The omission would offend due process insofar as it denies the public knowledge of the law that is supposed to govern it. If the legislature could validly provide that a law shall become effective immediately upon its approval even if it is not published (or after an unreasonable short time after publication), persons not aware of it would be prejudiced. They could be so, not because they failed to comply with it, but simply because they did not know that it exists. This is true not only of penal laws but also of non-penal laws, like a law on prescription which must also be communicated to the persons they may affect before they can begin to operate. (Taada vs. Tuvera, G.R. No. 63915, 29 December 86). But internal rules of certain offices do not need to be published as required by the law. It is enough that they are circularized within the office concerned. All statutes, including those of local application and private laws shall be published as a condition for their effectivity, which shall begin fifteen days after publication, unless the legislature fixes a different effectivity date. (Taada vs. Tuvera, G.R. No. 63915, 29 December 86).

PERSONS AND FAMILY RELATIONS

Art. 2

Covered by these rules are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers, whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. (Taada vs. Tuvera, G.R. No. 63915, 29 December 86). Rules on interpretative regulations. Interpretative regulations and those merely internal, i.e., those that regulate only the administrative agencys personnel and not the public, need not be published. Neither are the so-called letter of instructions issued by administrative superiors concerning their duties. (Taada vs. Tuvera, G.R. No. 63915, 29 December 86). The Office of the Ombudsman and the Department of Justice entered into an internal arrangement outlining the authority of the prosecutors of the DOJ and the Office of the Ombudsman in the conduct of preliminary investigation. Senator Gregorio Honasan and others were charged with violation of Article 134-A of the Revised Penal Code for the offense of coup detat. The Panel of Investigators of the DOJ sent a subpoena to the Senator for Preliminary Investigation. He contended that the Ombudsman has jurisdiction to conduct the preliminary investigation because he is a public officer with a salary Grade 31 so the case falls exclusively within the jurisdiction of the Sandiganbayan. The DOJ contended that pursuant to OMB-DOJ Joint Circular No. 95-001 the DOJ has jurisdiction although concurrent with the Office of the Ombudsman. He contended that the Circular is ineffective because it was not published. In brushing aside his contention, the Supreme Court said: Petitioners contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on the ground that it was not published is not plausible. We agree with and adopt the Ombudsmans dissertation on the matter, to wit: Petitioner appears to be of the belief, although NOT founded on a proper reading and application of jurisprudence, that OMB-DOJ Joint Circular No. 95-001, an internal arrangement between the DOJ and the Office of the Ombudsman, has to be published. As early as 1954, the Honorable Court has already laid down the rule in the case of People vs. Que Po Lay, 94

Art. 2

THE CIVIL CODE CHAPTER I EFFECT AND APPLICATION OF LAWS

Phil. 640 (1954) that only circulars and regulations which prescribed a penalty for its violation should be published before becoming effective, this, on the general principle and theory that before the public is bound by its contents, especially its penal provision, a law, regulation or circular must first be published and the people officially and specifically informed of said contents and its penalties, said precedent, to date, has to yet been modified or reversed. OMB-DOJ Joint Circular No. 95-001 DOES NOT contain any penal provision or prescribe a mandatory act or prohibit any, under pain of penalty. What is more, in the case of Taada vs. Tuvera, 146 SCRA 453 (1986), the Honorable Court ruled that: Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superior concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. OMB-DOJ Joint Circular No. 95-001 is merely an internal circular between the DOJ and the Office of the Ombudsman, outlining authority and responsibilities among prosecutors of the DOJ and of the Office of the Ombudsman in the conduct of preliminary investigation. OMB-DOJ Joint Circular No. 95-001 DOES NOT regulates the conduct of persons or the public, in general. Accordingly, there is no merit to petitioners submission that OMB-DOJ Joint Circular No. 95-001 has to be published. (Gregorio Honasan II, G.R. No. 159747, April 13, 2004). Publication must be in full. The publication must be in full or it is no publication at all, since its purpose is to inform the public of the contents of the laws. (Taada vs. Tuvera, G.R. No. 63915, 29 December 86). No need to publish Supreme Court decisions. In Roy vs. CA, G.R. No. 80718, January 29, 1988, a question was raised before the Supreme Court whether there is a need to

PERSONS AND FAMILY RELATIONS

Art. 2

publish decisions of the Court in the Official Gazette. The Supreme Court said that there is no law that requires the publication of Supreme Court decisions in the Official Gazette before they can be binding and as a condition to their becoming effective. It is the bounden duty of a lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated, and published in the advance reports of the Supreme Court Reports Annotated (SCRA), the Supreme Court Advanced Decisions (SCAD) and law journals. Thus, one may not cogently contend that the rule enunciated in the Habaluyas case (that a motion for extension of time to file motion for reconsideration does not stay the running of the appeal period) should not be applied, owing to the non-publication of the Habaluyas decision in the Official Gazette as of the time the subject decision of the Court of Appeals was promulgated. Unpublished presidential issuances ordered published in Official Gazette. Article 2 of the New Civil Code provides that laws shall take effect after fifteen (15) days following the completion of their publication in the Official Gazette, unless otherwise provided. This has been amended by Executive Order No. 200 to the end that laws may become effective after 15 days following the completion of their publication in the Official Gazette or in any newspaper of general circulation in the Philippines, unless it is otherwise provided. One of the controversial cases in 1985 was Taada, et al. vs. Tuvera, et al. (G.R. No. L-63915, April 24, 1985, 136 SCRA 27). There, petitioners sought a writ of mandamus to compel respondent officials to publish in the Official Gazette various presidential decrees, letters of implementation and administrative orders. Respondent officials contended, inter alia, that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provided for their own effectivity, invoking Art. 2 of the New Civil Code which states that laws shall take effect after fifteen days following the completion of their publication in the Official Gazette unless it is otherwise provided. The High Court, in the majority opinion penned by Justice Venicio Escolin, said that respondents argument is logically correct only insofar as it equates the effectivity of laws with the fact of publication, but considered in the light of other statutes such as Sec. 1 of Commonwealth Act No.

Art. 2

THE CIVIL CODE CHAPTER I EFFECT AND APPLICATION OF LAWS

638 (which provides that there shall be published in the Official Gazette [1] all important legislative acts and resolutions of a public nature x x x; [2] all executive and administrative orders and proclamations, etc.), the conclusion is easily reached that said Article 2 of the Civil Code does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. The clear object of Sec. 1, C.A. No. 638, is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no case for the application of the maxim ignorantia legis non excusat. It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice. Hence, the Court ordered respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, presidential issuances have no force and effect. Effectivity of the Civil Code. In a series of cases, the Supreme Court said that the Civil Code of the Philippines took effect on August 30, 1950, one year after its publication in the Official Gazette as required by Article 2 of the Civil Code. (See: Lara vs. Del Rosario, 94 Phil. 778; Raymundo vs. Peas, 96 Phil. 311; Camporedondo vs. Aznar, 102 Phil. 1055). Such decisions of the Supreme Court on the effectivity of the Civil Code have been criticized in that what the law provides is that the Civil Code of the Philippines shall take effect one year after the completion of its publication in the Official Gazette. Records show that it was published in the June 1949 Supplement of the Official Gazette to which its Editor certified that the supplement containing its publication was released for circulation on August 30, 1949. It has been said that if the basis for computing the one-year period is the date of publication, the effectivity is June 30, 1950. But if the date to be reckoned with is the date of release for circulation of the Supplement which contained the publication, then, the effectivity is August 30, 1950. It must be noted that in the above-cited cases, the Supreme Court said that the Civil Code took effect on August 30, 1950, one year after the release of the supplement for circulation. The Family Code likewise took effect on August 3, 1988, one year after its publication.

PERSONS AND FAMILY RELATIONS

Art. 3

Article 3. Ignorance of the law excuses no one from compliance therewith. (2) Basis of Rule. This rule of law is based upon the assumption that evasion of the law would be facilitated and the successful administration of justice defeated if persons accused of crimes could successfully plead ignorance of the illegality of their acts. (20 Am. Jur. 209, 210). This rule applies in criminal as well as in civil cases. If ignorance of the law is a valid excuse for its non-performance or compliance, then, it would be very easy for a person to escape scot-free from liability for the commission of a wrong. The reason is founded on public policy. Why the law proscribes ignorance of law as defense. If ignorance of the law is a valid defense, then, anyone can evade criminal and civil liability by claiming that he does not know the law. It would create a chaotic society. It would invite deception, promote criminality. It must, however, be remembered that mistakes in the application or interpretation of difficult or doubtful provisions of law may be the basis of good faith. (Articles 526, 2155, NCC). Ignorance of the law must not, however, be confused with mistake of facts. Ignorance of fact may excuse a party from the legal consequences of his acts or conduct, but not ignorance of the law. Presumption of knowledge of law. Everyone is conclusively presumed to know the law. (U.S. vs. De la Torre, 42 Phil. 62). As explained earlier, even if the people have no actual knowledge of the law they are presumed to know it after the publication. Foundation of law. Being a general principle, founded not only on expediency and policy but on necessity, there is no ground why Article 3, should be relaxed. If the rule were otherwise, the effect would involve and perplex the courts with questions incapable of any just solution and would embarrass it with inquiries almost interminable. (Zulueta vs. Zulueta, 1 Phil. 254).

Art. 3

THE CIVIL CODE CHAPTER I EFFECT AND APPLICATION OF LAWS

Principle and rule of knowledge of the law applied. It is an express legal rule that ignorance of the law is not an excuse for failure to comply therewith nor does it excuse anyone from compliance thereto. (U.S. vs. Gray, 8 Phil. 506). Thus, the allegation of the defendant that he was not acquainted with the provisions of the Municipal Code as to the residence required of an elector cannot be sustained, nor does it constitute an exemption, inasmuch as, according to this article, ignorance of the law does not excuse a person from compliance therewith. (U.S. vs. Deloso, 11 Phil. 180). Likewise, ignorance of the existence of the prohibitory provisions of the Opium Law is no excuse for the unlawful possession of opium. (U.S. vs. Chimo Que-Quenco,12 Phil. 449). These rulings, however, do not alter the presumption that a person is innocent of crime or wrong until the contrary is proved since this presumption is applicable in criminal as well as in civil cases. (Sociedad Dalisay vs. Delos Reyes, 55 Phil. 452). In civil cases particularly, the defendant is presumed to be innocent of the wrong charged until the contrary is proved by preponderance of evidence. Thus, fraud is not presumed unless facts are proved from which fraud may be inferred legally or logically. (Gana vs. Sheriff, 36 Phil. 236; De Roda vs. Lalk, et al., 48 Phil. 104). And the presumption of innocence includes that of good faith, fair dealing and honesty. (Jacinto vs. Arellano, 48 Phil. 570; Benedicto vs. F.M. Yap Tico & Co., 46 Phil. 753; Lao vs. Lee Tim, 46 Phil. 739). Rule applies to local laws; foreign laws should be specifically pleaded. The provisions of this article refer only to laws of the Philippines. For generally there is and there should be no conclusive presumption of knowledge of foreign laws. (Phil. Mfg. Co. vs. Union Ins. Society of Canton, 42 Phil. 845; Adong vs. Cheong Seng Gee, 43 Phil. 43; Lim vs. Col. of Customs, 36 Phil. 472). Courts will not take judicial notice of foreign laws; nor if the laws of the United States Congress nor of the various states of American Union; said laws must be proved like any other matter of fact. (Ching Huat vs. Co Heong, L1211, January 30, 1247). Thus, with respect to foreign laws, ignorance of fact can be a good defense. The reason for the rule is that, foreign laws do not prove themselves in the Philippines. They must be proven as facts according to the rules of evidence. (Garcia vs. Recio, G.R. No. 138322, October 2, 2002; Republic vs. Orbecido III, G.R. No. 154380, October 5, 2005).

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PERSONS AND FAMILY RELATIONS

Art. 4

Ignorance of law distinguished from ignorance of fact. A principle on which all the courts agree is that ignorance of the law is not an excuse for a criminal act. The fact that a person honestly believes that he has a right to do what the law declares to be illegal will not affect the criminality of the act. (U.S. vs. Balint, 258 U.S. 250, 66 L. ed. 604, 42 S. Ct., 301). An intention of the accused to keep within the law, but to get as near the line as possible, will not help him if in fact he violates the law. It merely means that he misconceived the law. (Horing vs. Dist. of Colombia, 254 U.S. 135, 41 S. Ct. 53). On the otherhand, since criminal intention is of the essence of crime, if the intent is dependent on a knowledge of particular acts, a want of such knowledge, not the result of carelessness or negligence, relieves the act of criminality. (Gordon vs. State, 52 Ala. 308, 33 Am. Rep. 575). This rule based on another rule of the common law, of a very general application, to the effect that there can be no crime when the criminal mind or intent is wanting; and therefore, when that is dependent on a knowledge of particular facts, ignorance or mistake as to these facts, honest and real, not superinduced by the fault or negligence of the party doing the wrongful act, absolves from criminal responsibility. (Dotson vs. State, 62 Ala. 141, 34 Am. Rep. 2). When presumption of knowledge of fact irrebuttable. Under the rule of notice in connection with the sale of lands covered by Land Registration Law and by Torrens Title, it is conclusively presumed that the purchaser has examined every instrument of record affecting his title. He is charged with notice of every fact shown by the record and is presumed to know every fact which an examination of the record would have disclosed. This presumption cannot be overcome by proof of innocence or good faith. (Legarda vs. Saleeby, 31 Phil. 590). The rule that all persons must take notice of what the public record contains is just as obligatory upon all persons as the rule that all men must know the law; that no one can plead ignorance of the law, nor does ignorance of the procedural law excuse anyone. (Zulueta vs. Zulueta, 1 Phil. 254). Article 4. Laws shall have no retroactive effect, unless the contrary is provided. (3) Concept of retroactive or retrospective law. A retroactive or retrospective law is one which looks backward or contemplates the past; one which is made to affect acts or transac-

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THE CIVIL CODE CHAPTER I EFFECT AND APPLICATION OF LAWS

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tions occurring before it came into effect, or rights already accrued, and which imparts to them characteristics, or ascribes to them effects, which were not inherent in their nature in the contemplation of law as it stood at the time of their occurrence. (Black on Interpretation of Laws, 380). Although this is the generally accepted definition of the term (Keith vs. Guedry, 114 S.W. 392; Merrill vs. Sherburne, 1 N.H. 199, 8 Am. December 52), used by and in courts in a wide and general sense; however, in discussions concerning the constitutional validity of particular statutes, and in relation to constitutional prohibitions against the enactment of retrospective law generally, the term is taken in a somewhat narrower sense, and is applied to laws which take away or impair the obligation of contracts, or which create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already past. (Sturges vs. Carter, 114 U.S. 511, 5 Sup. Ct. 1014, 29 L. ed. 240). But a statute cannot properly be called retrospective merely because a part of the requisites for its operation may be drawn from a time antecedent to its passage (Queen vs. Inhabitants of St. Mary, 12 Q. B. 120), nor because its operation may in a given case depend on an occurrence anterior to that date. (In re Scott, 126 Fed. 981). Thus, for example, an act is not retrospective to the event on which it is to operate, although, in the particular case, the relation of husband and wife existed before the taking effect of the act. (Noel vs. Ewing, 9 Ind. 37). Nor can this term be applied to a statute, though it acts on past transactions, or an existing state of facts, if it gives to persons concerned an opportunity to comply with its directions before its penalties attach. (State ex rel. Hickman vs. Tontine Mercantile Co., 184 Mo. 82 S.W. 1075). On the other hand, a prospective interpretation denies to the statute any applicability to such facts and causes as shall arise after its passage. (Black Interpretation of Law 381). Prospective operation of laws. It is a rule of statutory construction that all statutes are to be considered as having only a prospective operation, unless the purpose and intention of the lawmaking body give them a retrospective effect is expressly declared or is necessarily implied from the language used. (Ancajas vs. Jacosalem, 24 Phil. 220). The universally accepted rule is that a Constitution, as any other statute, has no retroactive effect except when it so expressly provides, and the Constitution of the Philippines certainly does not do so, much less if it affects vested rights. (Espiritu vs. San Miguel Brewery, et al., 63 Phil.

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Art. 4

615). In case of doubt in this regard, the doubt must be resolved against the retrospective effect. (In Re Riosa, 39 Phil. 23). Usury laws prospectively construed; consideration of prior occurrences permitted. Usury laws, ordinarily, are to be construed prospectively and not retrospectively. Nevertheless, the courts may look into prior occurrences in order to understand the particular fact which is claimed to be a violation of the law, and in order to ascertain the criminal intent. (U.S. vs. Tan Quineo Chua, 39 Phil. 552). Exceptions to the rule of prospectivity. The rule that laws have no retroactive effect is subject to certain exceptions or modifications among which are: 1. Penal laws favorable to the accused. Penal laws shall have a retroactive effect in so far as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of the Penal Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same. And the provisions of this article (Art. 22 of the Revised Penal Code), are applicable even to special laws which provide more favorable conditions to the accused. Thus, for example, if a special law provides that a certain offense also penalized under a special law (violation of the Election Law) prescribes in two years, this prescriptive law will be applicable even to those offenders who committed the crime prior to its promulgation. (U.S. vs. Soliman, 36 Phil. 5). In a case in which the law which prescribes a penalty for the commission of a certain crime is repealed and the new law provides a new and different penalty for the commission of that crime, the penalty which should be imposed upon the person who committed the crime prior to promulgation of the repealing law is that which is more favorable to the offender. (People vs. Moran, 44 Phil. 387). It may be recalled that in accordance with the provisions of the old Penal Code, seduction was a private crime and only the aggrieved party or her representative was entitled to prosecute or pardon the offender. However, Act No. 1773 amending this provision of the old Code made this crime a public crime which can be prosecuted by the government. In a certain case, it was held that the acts having been committed while the old law was still in force and the latter being more favorable to the defendant than Act 1773, the crime should be governed by the provisions of the Penal Code,

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the right of remission or pardon on the part of the offended party available under the Penal Code but expressly forbidden under the amendment, being in the opinion of the court favorable to the offending party. (U.S. vs. Hocbo, 12 Phil. 304; U.S. vs. Cuna, 12 Phil. 241; U.S. vs. Tonga, 15 Phil. 43). The rule, however, of retroactivity of penal laws if they favor the accused is not applicable when the later law expressly provides that its provisions should not be applicable to pending actions or to existing causes of action. (Tavera vs. Valdez, 1 Phil. 468). Neither the Constitution nor the statutes, except penal laws favorable to the accused, have retroactive effect in the sense of annulling or modifying vested rights, or altering contractual obligations. (China Ins. & Surety Co., Inc. vs. Judge of the CFI Manila, et al., 63 Phil. 320). Penal laws, therefore, cannot be made retroactive with respect to a crime, or other offense, unless they are favorable to the person accused. And a statute ought not to receive a construction making it act retrospectively, unless the words used are so clear, strong and imperative that no other meaning can be annexed to them, or unless the intention of the Congress or Legislature cannot be otherwise satisfied. (Segobia vs. Noel, 47 Phil. 543). 2. Remedial and procedural statutes. Laws have no retroactive effect except when they refer to a matter of procedure or is passed for the sake of convenience, and does not affect substantial rights. (Aguillon vs. Dir. of Lands, 17 Phil. 506; Montilla vs. Agustinian Corp., 24 Phil. 220). Except in case of remedial statutes and those which relate to procedure in the courts, it is a general rule that acts of the Legislature or of Congress will not be construed as to make them operate retrospectively, unless the lawmaking body has explicitly declared its intention that they should so operate, or unless such intention appears by necessary implications from the nature and words of the act so clearly as to leave no room for a reasonable doubt on the subject. The reason for this rule is the general tendency to regard retrospective laws as dangerous to liberty and private rights, on account of their liability to unsettle vested rights to disturb the legal effect of prior transactions. Having in mind this reason it was thus held in a case that laws procedural in nature may operate retrospectively. (Guevarra vs. Laico, 64 Phil. 144). Likewise, it was held that statutes making changes in remedies or procedure are within the discretion of the Legislature or the Congress and are valid as long as they do not infringe vested rights. (Concepcion vs. Garcia, 54 Phil. 81). An amendatory statue increasing the rate of

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retirement pensions for teachers does not operate to augment pensions granted prior to its enactment. (Derkum vs. Pension and Investment Board, 62 Phil. 171). 3. Special express mandate of law. When a new act expressly provides that it shall have retroactive effect, and no constitutional question is involved, then the law is given its retroactive or retrospective effect. (Govt. of the Phil. vs. Standard Oil Co., 20 Phil. 30). It is also given a retroactive effect when that effect is necessarily implied from its language or is necessarily intended. For instance, Commonwealth Act No. 682, commonly known as the Peoples Court Act, passed on September 25, 1945, and purposely intended and aimed at giving a speedy public trial of political offenders who were detained by the Commander-in-Chief of the Armed Forces of the United States in the Philippines. It is clear that said Act is to look back and take effect upon persons and acts that took place three years before its passage. So also is the act that created the International Court of Justice that tried war criminals at Nuremberg. 4. Statutes creating new rights. The principle that a new law shall not have any retroactive effect only governs the rights arising from acts done under the rule of the former laws but if the right be declared for the first time by subsequent law it shall take effect from that time even though it has arisen from acts subject to the former law, provided that it does not prejudice another acquired right of the same origin. It is well known that hereditary rights are not born nor does the will produce any effect except from the moment of the death of the person whose inheritance is concerned. (Bona vs. Briones, 38 Phil. 276). If a right is created for the first time, like proof of filiation by way of open and continuous possession of the status of an illegitimate child which was not present in the Civil Code, yet, it was incorporated in Article 172 of the Family Code, such law can be given retroactive effect. The condition is that, it must not impair vested rights. (Castro vs. CA, G.R. Nos. 50974-75, May 31, 1989). 5. Curative statutes. The term curative statutes, refer to those which undertake to cure errors and irregularities in judicial or administrative proceedings, and which are designed to give effect to contracts and other transactions between private parties which otherwise would fail of producing their intended consequences by reason of some statutory disability or the failure to comply with some

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technical requirement. (Mc Surely vs. Mc Grew 140 Iowa, 163, 118 N.W. 415). Thus, it is seen that curative statutes are necessarily retroactive. Curative statutes, whether relating to judicial or administrative action, or to the transaction of private parties, are intended to operate upon past facts or acts, and are therefore necessarily retrospective. Such statutes can be applied only in cases where the particular defect, omission, or irregularity to be cured is of such a nature that the legislature might competently have dispensed with it or rendered it immaterial in advance; and they must be so restricted as not to transgress any positive provisions of the constitution or interfere with vested rights of third persons. (Black on Interpretation of Laws, 418). Constitutional considerations on ex post facto law and on a bill of attainder. An ex post facto law is one which makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; or which aggravates a crime, or makes it greater than it was when committed or which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or which alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender. A Bill of Attainder is a legislative act which convicts persons of and punishes them, for, crimes without judicial trial. It declares the blood of such persons corrupted and devoid of all heritable quality. Attainder is extinction of civil rights and capacities which takes place whenever a person who has committed treason or felony receives sentence of death for his crime. The effect of attainder upon a felon is, in general terms, that all his estates, real and personal, is forfeited, that his blood is corrupted, so that nothing passes by inheritance to, from or through him. If a retrospective statute is in the nature of an ex post facto law or a bill of attainder, or if it impairs the obligation of contracts or divests vested rights, or if all retrospective laws are specifically forbidden by the constitution of a particular state, such an act will be unconstitutional and void, but not otherwise. If giving to a statute a retrospective operative would make it conflict with the constitution, in one or any of the ways above-mentioned, such will be avoided, if possible, by construction. Hence both bills of attainder and ex post facto laws are specifically prohibited by our constitution. They are

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both included in the category of retrospective laws. However, it should be noted that a bill of attainder or an ex post facto law is always retrospective; but not all retrospective laws are bills of attainder or ex post facto laws. (Black on Interpretation of Laws, 382). Statutes impairing vested rights. When the effect of giving to a statute a retrospective construction would be to make it destroy or impair vested rights, such construction will be avoided, and the statute will be held to apply to future acts and cases only, provided, that this can be done by any reasonable interpretation of the language used by the legislature. The courts uniformly refuse to give to statutes a retrospective operation, whereby rights previously vested will be injuriously affected unless compelled to doubt that such was the intention of the legislature. (Chew Heong vs. U.S., 112 U.S. 536). The rule is that a statute affecting rights and liabilities should not be so construed as to act upon those already existing, and it is the result of the decisions that although the words of a statute are so general and broad in their literal extent as to comprehend existing cases, they must yet be so construed as be applicable only to such as may thereafter arise, unless the intention to embrace all is clearly expressed. (In re Protestant Episcopal Public School, 58 Barb. [N.Y.], 161). Thus, again, a statute providing for the forfeiture of that part of an estate whereon waste is committed by the tenant for life cannot be construed to affect life estates existing at the time of its enactment. (Kent vs. Bently, 3 Ohio December 173). Statutes imposing penalties and liabilities. A statute imposing a new penalty or forfeiture, or a new liability or disability, or creating a new right of action, will not be construed as having a retrospective operation, if such consequences can fairly be avoided by interpretation. (61 Right vs. Southern Ry. Co., [C.C.] 80 Fed. 260). So, also, a revenue act imposing penalties upon delinquent taxpayers should not be so construed as to affect persons who became delinquent before the statute took effect. (Bartruff vs. Remy, 15 Iowa 257). Prospectivity of laws is the general rule. As a general rule, laws shall have prospective effects only. There are, however, certain exceptions, such as: a) when the law provides for its retroactivity;

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b) c) d) e) f)

when the law is penal in nature and which is favorable to the accused who is not a habitual delinquent or recidivist; when the law is procedural in nature; when it creates new substantive rights; when the law is curative in nature; when it is interpretative of other laws.

Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retrospective in that sense and to that extent. (Mun. Govt. of Coron vs. Cario, G.R. No. 65894, September 24, 1987). This is so because there is no vested right in the rules of procedure. In Oriental Assurance Corp. vs. Solidbank Corp., G.R. No. 139882, August 16, 2000, the Supreme Court once again said the generally accepted rule that procedural rules are applicable retroactively. While under the old Rules, the payment of the docket fee was not required upon the filing of the notice of appeal, the present rule requires such payment. (Sec. 4, Rule 41). This rule is retroactive even if the case was governed by the old rule. If there is no payment of the same, the case can be dismissed pursuant to Rule 50, Sec. 1 of the Rules of Court. It was contended that the retroactive effect of the Rules would impair vested rights under the old Rules as the old rule merely required the payment of the docket fee within 15 days from receipt of the notice from the CA clerk of court that the record on appeal has been received. It was ruled that the retroactive effect or application of procedural rules to pending cases is undoubtedly well settled. (People vs. Sumilang, 77 Phil. 764; Alday vs. Camilon, 120 SCRA 521; Lim Law vs. Olympic Sawmill Co., 129 SCRA 439; Bernardo vs. CA, 168 SCRA 439; Duremdes vs. Commission on Elections, 178 SCRA 746; Ocampo vs. CA, 180 SCRA 27, Peoples Financing Corp. vs. CA, 192 SCRA 34; Aris [Phils.], Inc. vs. NLRC, 200 SCRA 246; Asset Privatization Trust vs. CA, 229 SCRA 627; Del Rosario vs. CA, 241 SCRA 519; Diu vs. CA, 251 SCRA 472). Note however, that the Supreme Court has time and again warned that in case of non-payment of the docket fees upon the perfection of the appeal should not be a cause for outright dismissal of the appeal. The party concerned should be given an opportunity to

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pay. If he does not comply with the order of the Court, that is the time when the appeal can be dismissed. The reason is that nonpayment of the docket fee is not a jurisdictional defect. (Sun Insurance vs. Asuncion, 170 SCRA 275). Prospectivity of doctrinal rulings. In a prosecution for illegal possession of firearms, the accused admitted he had no license or permit but claimed to be entitled to exoneration because he had an appointment as secret agent from the PC provincial commander, said appointment expressly authorizing him to possess and carry the firearm. He contended he was entitled to acquittal because at the time he possessed the firearm (1964) the doctrine then in force was that laid down in People vs. Macarandang (1959), 106 Phil. 713, and People vs. Lucero (1958), 103 Phil. 500. The trial court convicted him, on the ground that this doctrine had been abandoned in the 1967 case of People vs. Mapa (20 SCRA 1164). Held: When a doctrine laid down by the Supreme Court is overruled and a different view is adopted, the new doctrine should be applied prospectively, and should not apply to parties who had relied on the old doctrine and acted on the faith thereof. This is especially true in the construction and application of criminal laws where it is necessary that the punishability of an act be reasonably foreseen for the guidance of society. Accused was acquitted. (People vs. Jabinal, G.R. No. L-30061, February 27, 1974). Family Code is retroactive. If the law provides for its retroactivity, it retroacts but whether it be substantive or procedural, if it is given effect, the condition is that it must not impair vested rights. One such law that provides for its retroactivity is the Family Code, but it expressly provides that its provisions are retroactive provided that no vested rights are impaired. (Art. 256, Family Code; Tayag vs. CA, June 9, 1992; Rep. vs. CA, et al., G.R. No. 92326, January 24, 1992). Penal laws when retroactive; requisites; example. If the law is penal in nature, it can be given retroactive effect provided that the same is favorable to the accused who is not a ha-

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bitual delinquent or a recidivist. So that even if the law is penal in character, but it is not favorable to the accused, it cannot be given retroactive effect. Illustration: Let us assume that X committed an offense punishable by reclusion perpetua at the time it was committed. During the trial, a law was passed increasing the penalty of such offense to death. In case he is convicted after trial, the court cannot impose the penalty of death because the law is not favorable to him as it increased the penalty. But if it were the reverse, where at the time of the commission of the offense, the imposable penalty was death, and during the trial, it was reduced to only reclusion perpetua, then it can be retroactive because the law is favorable to the accused. But again, even if it is penal in nature and favorable to the accused, still there is another condition for its retroactivity, that is, he must not be a habitual delinquent or a recidivist. If he is, then, the law is not retroactive. In sum, for a penal law to have retroactive effect, it must be favorable to the accused and the latter must not be a habitual delinquent or a recidivist. The elements must concur. Retroactivity of penal laws. In People vs. Patalin, et al., G.R. No. 125539, July 27, 1999, 109 SCAD 734, accused were charged with the crime of robbery with multiple rape in 1984. In 1987, when the 1987 Constitution suspended the imposition of the death penalty, the trial has not yet been finished, hence, it was overtaken by the Death Penalty Law effective January 1, 1994. If the accused are convicted, can the death penalty be imposed upon them? The Supreme Court said No and went on to say that before the 1987 Constitution, death penalty as a capital punishment could be imposed on certain heinous crimes like robbery with rape. (Art. 294, Revised Penal Code). From 1987, however, until the passage of the death penalty law or on January 1, 1994, the imposition of death penalty was suspended. In the case of the three convicts, an issue

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came up regarding the imposition of death penalty because when they committed the crime in 1984, the death penalty was still in our statute books; but the trial of their case was overtaken by the 1987 Constitution and then later on by the new death penalty law. So, when judgment was finally rendered finding them guilty, the death penalty had been suspended and then reimposed again. The issue they raised therefore was: Can the Court impose the death penalty on them? Of course No. Article 22 of the Revised Penal Code provides that penal laws shall have a retroactive effect only insofar as they favor a person guilty of a felony who is not a habitual criminal, although at the time of the publication of such a law a final sentence has been pronounced and the convict is serving the same. A statute is penal when it imposes punishment for an offense committed against the State. The provision of the Constitution on the abolition of the death penalty is penal in character since it deals with the penalty to be imposed for capital crimes. This provision may be given retroactive effect during three possible stages of a criminal prosecution: (a) when the crime has been committed and the prosecution begins; (b) when sentence has been passed but the service has not begun; and (c) when the sentence is being carried out. So there is no doubt that the abolition of the death penalty by the 1987 Constitution retroactively affected and benefited the convicts. Perforce, the subsequent reimposition of the death penalty will not affect them. The framers of the Constitution themselves state that the law to be passed by Congress reimposing death penalty can only have prospective application. There is no question that a person has no vested right in any rule of law which entitles him to insist that it shall remain unchanged or repealed, nor in any mission to legislate on a particular matter. However, a subsequent statute cannot be applied retroactively as to impair a right that accrued under the old law. Clearly, the convicts right to be benefited by the abolition of the death penalty in the 1987 Constitution accrued or attached by virtue of Art. 22 of the Revised Penal Code. (People vs. Patalin, et al., G.R. No. 125639, July 27, 1999, 109 SCAD 734). Article 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. (4a)

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As a rule, acts executed against mandatory or prohibitory laws are void, except when the law itself allows their validity. Marriage laws are mandatory and prohibitory, such that if the marriage is contracted where one of the parties is psychologically incapacitated to perform the duties to the marriage bond, the marriage is void (Art. 36, Family Code); but the law recognizes as legitimate, a child born or conceived out of such marriage, provided that the child is conceived or born prior to the declaration of nullity of the marriage. (Art. 54, Family Code). If a married woman marries before the lapse of 300 days after the death of her husband, the marriage is valid, but the Revised Penal Code penalizes her. In the case of DBP vs. CA, 65 SCAD 82, 249 SCRA 331, October 16, 1995, the Supreme Court said that the buyer of a parcel of land that is considered as non-disposable land of the public domain did not acquire a valid title over the land, but recognized certain effects of the same, in that when the buyer asked for reimbursement of what was paid to the DBP, the value of the fruits gathered from the land was deducted from the amount reimbursed. This is a recognition of a right, even if no title was transmitted in favor of the buyer. And, the reduction of the amount reimbursed is in conformity with the rule that no one shall enrich himself at the expense of another. It is well-settled doctrine that a statute requiring rendition of judgment within a specified time is generally construed to be merely directory, so that non-compliance with them does not invalidate the judgment on the theory that if the statute had intended such result it would have clearly indicated it. (Marcos vs. COMELEC, et al., 64 SCAD 358, 248 SCRA 300). An example is the Constitutional provision requiring courts to render judgments within a certain period. The Constitution says: Sec. 15. All cases or matters filed after the effectivity of the Constitution must be decided or resolved within 24 months from date of submission for the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts. A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the Rules of Court or by the court itself. Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or

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the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period. Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay. (Art. VIII). But a closer look into such constitutional provision does not make a judgment rendered beyond the reglamentary period void. However, the judge who does not comply with the prescribed periods can be subject to administrative sanctions. But still, the judgment is valid. Hence, such law can be considered directory. In Marcelino vs. Cruz, it was said that the difference between a mandatory and directory provision is often determined on the ground of expediency, the reason being that less injury results to the general public by disregarding than enforcing the letter of the law. Article 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. (4a) Waiver defined. It is the relinquishment or refusal of a known right with both knowledge of its existence and an intention to relinquish it. (Portland & F.R. Co. vs. Spillman, 23 Or. 587; 32 Pac. 689). When is there a waiver. In practice, it is required of everyone to take advantage of his rights at a proper time; and neglecting to do so will be considered as a waiver. Thus, failure of counsel, either in brief or oral argument, to allude to an assignment of error, is a waiver thereof. (American Fibre-Chamois Co. vs. Febre Co., 72 Fed. 508, 18 C.C. A. 662). In contracts, if after knowledge of a supposed fraud, surprise, or mistake, a party performs the agreement in part, he will be considered as having waived the objection. (Bro. P.C. 289; 11 B.L.D. 3418). If

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with the knowledge of the existence of the insurance, contrary to the terms of the contract, the defendant insurance company elects to continue the policy in force, its action amounts to a waiver of the right of cancellation. (Gonzales Lao vs. Yek Tong Lim Fire, et. Co., 55 Phil. 386). There are matters of procedure which under the Rules of Court are matters that are waivable or fall within the discretion of the courts. For instance, venue of actions may be waived. (Manila Railroad vs. Atty. Gen., 20 Phil. 253). Rules of evidence which merely protect the parties during trials may be waived by them. Thus, a contract of insurance requiring the testimony of an eyewitness as the only evidence admissible concerning the death of the insured person is valid. Likewise, a contract waiving the privilege against the disclosure of confidential communications made by a patient to a physician is valid. The right of the accused to a preliminary investigation is a personal one and may be waived, expressly or by implication. The right of the accused to be present at certain stages of the proceedings may be waived; so also may his right to the assistance of counsel. (U.S. vs. Goleng, 21 Phil. 426; U.S. vs. Kilayco, 31 Phil. 371; U.S. vs. Escalante, 36 Phil. 743). Scope of waiver. When a constitutional provision is designed for the protection solely of the property rights of the citizen, it is competent for him to waive the protection, and to consent to such action as would be invalid if taken against his will. In criminal cases this doctrine can be true only to a very limited extent. (Cooley, Const. Lim. 219). The right of waiver while extending to almost all descriptions of contractual, statutory, and constitutional privileges is nevertheless subject to control of public policy, which cannot be contravened by any conduct or agreement of the parties. Accordingly, all agreements will be held void which seeks to waive objections to acts or defenses illegal at law (Boutelle vs. Melendy, 19 N.H. 196; 49 Am. December 152; Rosler vs. Rheen, 72 Pa. 54), or which are forbidden on the ground of morality or public policy. (Green vs. Watson, 75 Ga. 471, 473; Am. Rep. 479). Waiver distinguished from ratification. Ratification is the adoption of a contract made on ones behalf by some one whom he did not authorize, which relates back to the execution of the contract and renders it obligatory from the outset. Waiver is the renunciation of some rule which invalidates the con-

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tract, but which, having been introduced, for the benefit of the contracting party, may be dispensed with at his pleasure. (Reid vs. Field, 83 Va. 26, S.E. 395). Waiver, being mixed question of law and fact, it is the duty of the court to define the law applicable to waiver, but it is the province of the court or the jury to say whether the facts of a particular case constitute waiver. (Nickerson vs. Nickerson, 80 Me. 100, 12 Astl. 880). Thus, if a minor enters into a contract, the same can be ratified by the parents or guardians. Such act of the parents or guardians shall cleanse the contract of its defect from the commencement of the contract of the minor. (Art. 1396, NCC). General rule and exceptions on waiver of rights. The general rule is that rights may be waived. But this rule is not absolute. It admits of two exceptions, such as: a) b) When the waiver is contrary to law, public order, public policy, morals, good customs; and When the waiver is prejudicial to a third person with a right recognized by law.

An example of a waiver of right which is contrary to public policy and morals is the situation in Cui vs. Arellano University, L-15127, May 30, 1961. A student was granted scholarship but agreed not to transfer to another school, unless he would refund all benefits he derived out of his scholarship. The Supreme Court said that this is void. The ruling in Cui vs. Arellano University is consistent with Article 1306 of the Civil Code where the parties to a contract are given the liberty to stipulate on its terms and conditions, provided the same are not contrary to law, public policy, public order, morals and good customs. Furthermore, Article 1409 of the Civil Code states that contracts whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy are void. Future inheritance. Waiver of future inheritence is void. That is contrary to law. This is especially so if the waiver or repudiation is intended to prejudice creditors. Hence, under Article 1052 of the Civil Code, if an heir repudiates inheritance to the prejudice of his own creditors, the lat-

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ter may petition the court to authorize them to accept it in the name of the heir. The acceptance is to the extent of their credit. Political rights. Political rights cannot be the subject of waiver. If a candidate for mayor agrees to split his term of office with the vice-mayor to prevent the latter from running against him, that contract is void by reason of public policy. In fact, the Constitution says that a public office is a public trust. It is not a property. It is beyond the commerce of man, hence, it cannot be the object of a contract, otherwise, it is void ab initio. Waiver contrary to law. In Leal vs. IAC, G.R. No. 65425, November 5, 1986, a contract of sale with right to repurchase was entered into by the parties with a prohibition against selling the property to any other person except the heirs of the vendor a retro. This was held to be void because it is contrary to law. It amounts to a perpetual restriction on the right of ownership. What was declared void however, was the stipulation prohibiting the sale to any other person, not the whole contract itself. In the case of Gatchalian vs. Delim, et al., G.R. No. 56487, October 21, 1991, the Supreme Court declared as void the waiver of the right of the injured passengers to prosecute the civil and criminal aspects of the liability of the carrier and the driver in a vehicular accident causing injuries to them in consideration of a measly sum of money. It was held to be contrary to public policy. The same ruling was enunciated in Carmelcraft Corp. vs. NLRC, G.R. Nos. 90634-35, June 6, 1990, when there was a waiver of claims by workers for a measly sum of money. In Cui vs. Arellano Univ., 2 SCRA 205, it was also said that the waiver of the right to transfer to another school by a scholar was contrary to public policy. In a contract of lease, it provided that the lease shall begin in crop year 1968-1969 up to and including crop year 1973-1974, with an option of another five years on the part of the lessee to extend. It was contended that to construe the provision in the contract literally would leave the extension of the period exclusively to the lessee which is contrary to the principle of mutuality in contracts. The Supreme Court, in Caete vs. San Antonio Agro-Industrial Dev. Corp., 113 SCRA 723, held that there is nothing illegal or contrary to public

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policy in such a stipulation. Jurisprudence and experience do not and cannot sustain such view. The parties to a contract are free to deprive themselves of certain rights and waive them, if there is any such existing law, as long as such renunciation is not violative of public policy or any contrary legal impediment. (Art. 6, NCC; see also Pleasantville Dev. Corp. vs. CA, G.R. No. 79688, February 1, 1996, 67 SCAD 594). Waiver of Rights. In Sanchez, et al. vs. CA, et al., G.R. No. 108947, September 29, 1997, 87 SCAD 463, there was a waiver contained in the compromise constituting a relinquishment of a right to properties owned by the decedent which were not known. In contesting the validity of such waiver, it was contended that the same is contrary to morals, law, public policy. In upholding the validity of such waiver, the Supreme Court said that the assailed waiver pertained to their hereditary right to properties belonging to the decedents estate which were not included in the inventory of the estates properties. It also covered their right to other properties originally belonging to the spouses Juan Sanchez and Maria Villafranca Sanchez which have been transferred to other persons. In addition, the parties agreed in the compromise to confirm and ratify said transfers. The waiver is valid because the parties waived a known and existing interest their hereditary right which was already vested in them by reason of the death of their father. Article 777 of the Civil Code provides that: (t)he rights to the succession are transmitted from the moment of the death of the decedent. Hence, there is no legal obstacle to an heirs waiver of his/ her hereditary share even if the actual extent of such share is not determined until the subsequent liquidation of the estate. (De Borja vs. Vda. de Borja, 46 SCRA 577). At any rate, such waiver is consistent with the intent and letter of the law advocating compromise as a vehicle for the settlement of civil disputes. (Republic vs. Sandiganbayan, 44 SCAD 698, 226 SCRA 314). There is really nothing contrary to law, public policy and morals if a person waives such hereditary right for as long as it has already been vested upon him by the death of the source of such right, the decedent. What is void is when a person waives or renounces a future inheritance because such right is merely inchoate. Thus, Article 905 of the Civil Code expressly prohibits it when it says that:

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Every renunciation or compromise as regards a future legitime between the person owing it and his compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must bring to collation whatever they may have received by virtue of the renunciation or compromise. (816) Along the same line, Article 1347 of the Civil Code prohibits a person from entering into a contract pertaining his future inheritance. It provides that all things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law. Along the same vein, the Supreme Court rejected the contention of the defendant in Valenzuela Hardwood and Industrial Supply, Inc. vs. CA, et al., G.R. No. 102316, June 30, 1997, 84 SCAD 105, where in a charter party contract, the owner of the cargo waived the right to recover damages from the shipowner and ship agent for the acts or conduct of the captain. More specifically, the contract provided that the owners shall not be liable for loss, split, short-landing, breakages and any kind of damage to the cargo. The plaintiff contended that the waiver was contrary to Articles 586 and 587 of the Code of Commerce. In rejecting such plea, the Court said that Article 6 of the Civil Code provides that: rights maybe waived, unless the waiver is contrary to law, public policy, public order, morals, or good customs or prejudicial to a person with a right recognized by law. As a general rule, patrimonial rights may be waived as opposed to rights to personality and family rights which may not be made the subject of waiver. (See Article 2035, NCC). Being patently and undoubtedly patrimonial, petitioners right conferred under said articles may be waived. This, the petitioner did by acceding to the contractual stipulation that it is solely responsible for any damage to the cargo, thereby exempting the private carrier from any responsibility for loss or damage thereto. Furthermore, the contract of private carriage binds petitioner and private respondent alone, it is not imbued with public policy considerations for the general public or third persons are not affected thereby. Petitioners likewise argued that the stipulation subject of this controversy is void for being contrary to Arts. 1170 and 1173 of the Civil Code which read:

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Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor thereof, are liable for damages. xxx xxx xxx Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of Arts. 1171 and 2201, paragraph 2, shall apply. If the law does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. The articles are applicable only to the obligor in respect of the cargo for this obligation to bear the loss was shifted to petitioner by virtue of the charter party. This shifting of responsibility, as earlier observed is not void. The provisions cited by petitioner are therefore, inapplicable to the present case. It would have been different if carrier were a public carrier, not a private carrier. Moreover, the 2nd paragraph of Art. 1173 of the Civil Code which prescribes the standard of diligence to be observed in the event the law or the contract does not prescribe the degree of diligence is inapplicable. In the instant case, Art. 362 of the Code of Commerce provides the standard of ordinary diligence for the carriage of goods by a carrier. The standard of diligence under this statutory provision may, however, be modified in a contract of private carriage as the petitioner and private respondent had done in their charter party. Note that in the earlier cases of Caete vs. San Antonio Industrial Dev. Corp., 113 SCRA 723 and Pleasantville Dev. Corp. vs. CA, G.R. No. 79688, February 1, 1996, 67 SCAD 594, it was ruled that the parties to a contract are free to deprive themselves of certain rights and waive them, if any such exist in law, as long as such renunciation is not violative of public policy or any contrary legal impediment. Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the court declares a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.

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Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (5a) Preliminary consideration. As can be well discerned the first paragraph of this amended provision is not only similar to but also identical with article 5 of the old Civil Code. However, two other paragraphs are introduced and added. The first of these gives supremacy to the Constitution over an ordinary law or legislation; the second asserts the supremacy of the law and the Constitution over administrative or executive acts. Reasoning out the innovation, the Code Commission said: Though this is an undisputed theory, it is wise to formulate it as a clear-cut legal provision by way of a constant reminder to not a few public officials. The disregard of this principle is one of the main sources of abuse of power by administrative officials. (See Report of the Code Commission, p. 78). Repealing acts; their effects. The repeal of a statute shall not affect or impair any act done, right vested, duty imposed, penalty accrued, or proceeding commenced before the taking effect of the repealing act. Repealing acts are valid, and create a new rule of construction which is binding on the courts, and which must be applied in all cases except where it is evident that the effect would be to defeat the plain and manifest purpose of the Legislature or Congress in the repealing statute. (Black on Interpretation of Laws, 421). Most repealing statutes are curative. Kinds of repeal. They are express and implied; express, when it is contained in the subsequent act; implied, when the subsequent law is inconsistent with the former. Repeals by implication; requisites. In order that a later statute may repeal an earlier one by implication, the two statutes must relate to the same subject matter and be repugnant to each other. Where two statutes can be applied to the same subject matter at the same time without interfering with each other or where there lies no incompatibility between the two or

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where they are not repugnant to each other, then the earlier statute is not repealed by the later. (Calderon vs. Santisimo Rosario, 28 Phil. 164). Submitted to this Ordinance No. 12 of the Municipality of San Fernando, La Union, adopted under the authority of paragraphs (r) and (s) of Section 39 of Act No. 82, is not conflict with the provisions of Act 1147. The objects of the two are different and distinct in that the object of Act No. 1147 is to protect the rights of owners of large cattle in their ownership, whereas that of Ordinance No. 12 is to secure pure food for the inhabitants of the municipality, thereby protecting their health and comfort. A municipality, under proper charter authority, may adopt ordinances upon subjects already covered by the general law of the State, so long as the ordinance and the general law are not repugnant with each other. (U.S. vs. Chan Tienco, 25 Phil. 89). It results therefore, that in this as in the above case, there is no repeal by implication. Repeals by implication not favored. Repeals by implication are not favored. And where two statutes cover, in whole or in part, the same subject matter, and are not absolutely irreconcilable, the duty of the court no purpose to repeal being clearly expressed or indicated is, if possible, to give effect to both. (Licauco & Co. vs. Dir. of Agriculture, 44 Phil. 138). Irreconcilable repugnancy must be shown. A prior legislative Act will not be impliedly repealed by a later Act unless there is a plain, unavoidable and irreconcilable repugnancy between the two; if both acts can by any reasonable construction stand together, both will be sustained. (Licauco & Co. vs. Dir. of Agriculture, 44 Phil. 138). Instances of repeals by implication. When a law prescribes the penalty for an act committed under certain circumstances, and a later statute differently penalizes the same act committed in the same manner, the later law must be taken to repeal the earlier, although the subsequent statute contains no specific repealing clause. While the repeal of penal statutes by implication is not favored if the two laws can consistently stand together, yet, in penal as well as in other statutes, repeal by implication necessarily results in case of repugnancy or essential inconsistency between two successive statutes, or in any case when the legislature evidently manifests his intention that the later shall super-

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sede the earlier. (U.S. vs. Reyes, 10 Phil. 423). Act 2710 of the Philippine Legislature declaring divorces shall operate to dissolve the bonds of matrimony and defining the conditions under which divorces may be granted has the effect of abrogating the limited divorce formerly recognized in these Islands. The circumstance that a statute that is inconsistent with prior laws and parts of laws inconsistent therewith does not prevent it from operating by implication to repeal such inconsistent laws. (Garcia vs. Ruason, 40 Phil. 943). Distinction between repealing effect of affirmative and negative laws. There is a clear distinction between affirmative and negative statutes in regard to their repealing effects upon prior legislation, which may be expressed by saying that while an affirmative statute does not impliedly repeal the prior law unless an intention to effect the repeal is manifest, a negative statute repeals all conflicting provisions unless the contrary intention is disclosed. (Garcia vs. Tuason, 40 Phil. 943). Dominating influence of special over a general provision. Where there is in the same statute a particular enactment, and also a general one, which in its most comprehensive sense would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment. (Licauco and Co. vs. Dir. of Agriculture, 44 Phil. 138). Thus, a subsequent general statute dealing specifically and in detail with the same subject matter unless there is a clear and necessary conflict between the two. (Ynchausti & Co. vs. Col. of Customs, 36 Phil. 178). The reason why a general law will not repeal a special law or charter is because in passing a special charter the attention of the legislature is directed to the facts and circumstances which the act or charter is intended to meet. The legislature considers and makes provision for all the circumstances of a particular case. The legislature having specially considered all of the facts and circumstances in a particular case in granting a special charter, it will not be considered that the legislature, by adopting a general law without any mention of its intention to amend or modify the charter, intended to amend, repeal, or modify the special act or charter. (Manila Railroad Co. vs. Rafferty, 40 Phil. 224; Compaa General vs. Col. of Customs, 46 Phil. 8).

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Art. 7

Repeal of repealing law; revival. When a law which expressly repeals a prior law is itself repealed, the law first repealed shall not be thereby revived unless expressly so provided, but this provision does not change or modify the rule which prescribes that when a law which repeals a prior law, not expressly but by implication, is itself repealed, the repeal of the repealing law revives the prior law, unless the language of the repealing statute provides otherwise. (U.S. vs. Soliman, 36 Phil. 5). (Ibid.) As a rule, laws are repealed only by subsequent ones. The law, as a rule, does not allow implied repeal. The mere fact that a law is not observed does not mean its repeal. Senator Tolentino opined that since laws are promulgated by competent authority of the state, they can cease to have effect only through the will of the State; the Statute may lapse by its own terms, or it may be repealed by the legislative department, or declared unconstitutional by the judicial branch. Only the State can abrogate its own acts. Hence, as long as a law remains in the Statute books, its legal force and effect subsists, notwithstanding any practice or usage to the contrary. An example of a law that lapsed by its own terms is the Rental Law (C.A. No. 689, as amended by R.A. No. 66). Prior to R.A. No. 8533, approved February 23, 1998, it can be said that Article 39 of the Family Code fills in the same category, insofar as it provides that if a marriage was contracted before the effectivity of the Family Code, the period to have it declared void on the ground of psychological incapacity is 10 years after the effectivity of the Family Code. If a party does not file an action to declare such marriage void within that period, the action shall prescribe. After the lapse of 10 years after effectivity of the Family Code, the said provision of the law shall cease to be operative. A law may be repealed expressly when a new law is enacted containing a provision expressly repealing an existing law. It may also be repealed impliedly as when there is a conflict between the old and the new law such that the observance of one excludes that of the other. The implied repeal, operates without any declaration of repeal in the subsequent law. If there is implied repeal, it is required that the laws must cover the same subject matter and the subsequent law must be repugnant to the earlier law, hence; the Supreme Court in Calderon vs. Santisimo Rosario, 28 Phil. 164; U.S. vs. Chan Tienco, 25 Phil. 89, said that where the two laws merely apply to the

Art. 8

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same subject matter but there is no incompatibility between them, and they can both stand together, one does not impliedly repeal the other. An example of an implied repeal is when a new law imposes a penalty lower than that provided for in the existing law. (U.S. vs. Reyes, 10 Phil. 423). If Congress enacts a law providing that the highest penalty for a heinous offense is merely reclusion perpetua, then, there is an implied repeal of the existing law that imposes the death penalty. If there is a conflict between a general and a special law, both of which include or cover the same subject, the special law must be deemed an exception to the general law. (Lichauco vs. Apostol, 44 Phil. 138). In a series of cases, it has been uniformly held that a subsequent general statute will not be held to repeal a prior special one, unless there is a clear and necessary conflict between the two (Ynchausti vs. Stanley, 36 Phil. 78; Manila Railroad Co. vs. Rafferty, 40 Phil. 224), for implied repeals are not favored. If the laws can by reasonable construction stand together, both will be sustained. (Lichauco vs. Apostol, supra; Compaia General de Tabacos vs. Collector of Customs, 46 Phil. 8). In case of an express repeal of a law, the repeal of the repealing law does not revive the old law, except if provided expressly. But the rule is that, if the repeal is implied, the repeal of the repealing law revives the old law, unless the law otherwise provides. Article 8. Judicial decisions applying and interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. (n) Contemporaneous interpretations. Contemporaneous interpretations of laws form part of the law as of the time of their enactment. They assume the authority as the statutes themselves. They are what the laws mean. They merely establish the contemporaneous legislative intent that the construed laws purport to carry into effect. (Floresca vs. Philex Mining, L-30642, June 30, 1985). Of course, the judicial decisions referred to by law are decisions of the Supreme Court, not the lower courts. The principle of contemporaneous construction of a statute by the executive officers of the government, whose duty is to execute it,

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is entitled to great respect. It ordinarily controls the construction of the law by the courts, unless such interpretation is clearly erroneous. (Philippine Global Communications, Inc. vs. Judge Relova, G.R. No. 60548, 10 November 86; In re Allen, 2 Phil. 630; Government of the Philippines vs. Municipality of Binalonan, 32 Phil. 634; Philippine Association of Free Labor Unions vs. Bureau of Labor Relations, 72 SCRA 396). Administrative interpretation of laws. Administrative regulations adopted under a legislative authority by a particular department must be in harmony with the law and should be for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself cannot be extended. (Shell Philippines vs. CB, G.R. No. L-51353, June 27, 1988). If conflict exists between the basic law and a rule or regulation issued to implement it, the basic law prevails. Said rule or regulation cannot go beyond the terms and provisions of the basic law. Rules that subvert the statute cannot be sanctioned. Except for constitutional officials who can trace their competence to act to the fundamental law itself, a public official must locate in the statute relied upon a grant of power before he can exercise it. Department Seal may not be permitted to outrun the authority conferred by statute. (Tayug Rural Bank vs. Central Bank, G.R. No. 46158, 28 November 86; People vs. Lim, 108 Phil. 1091; University of Sto. Tomas vs. Board of Tax Appeals, 93 Phil. 376; Del Mar vs. Phil. Veterans Administration, 52 SCRA 340; Radio Communications of the Philippines, Inc. vs. Santiago, 58 SCRA 493). When promulgated pursuant to the procedure or authority conferred upon the administrative agency by law, the rules and regulations partake of the nature of a statute, and compliance with it may be enforced by a penal sanction provided by law. Conversely, an administrative agency cannot impose a penalty not so provided in the law authorizing the promulgation of the rules and regulations, much less one that is applied retroactively. (Tayug Rural Bank vs. Central Bank, G.R. No. 46158, 28 November 86). Intention of law is formed in its spirit. The study of law is not an exact science with definite fields of black and white and unbending rules and rigid dogmas. The beauty of this discipline is the penumbra shading gradually from one ex-

Art. 8

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35

treme to another, that gives rise to those honest differences of opinion among the brotherhood as to its correct interpretation. Honest differences are allowed and are inevitable, but the law does not permit (and much less does equity) stilted readings to suit ones motives, especially if they are less than noble. (Royal Lines, Inc. vs. Court of Appeals, G.R. No. 27239, 20 August 86). In People vs. Salas, et al., G.R. No. 66469, July 29, 1986, it was said that a too little reading of the law is apt to constrict rather than fulfill its purpose and defeat the intention of its authors. That intention is usually found not in the letter that killeth but in the spirit that giveth life, which is not really that evanescent or elusive. Judges must look beyond and not be bound by the language of the law, seeking to discover by their own lights the reason and the rhyme for its enactment. That they may properly apply it according to its ends, they need and must use not only learning but also vision. (People vs. Salas, et al., G.R. No. 66469, 29 July 1986). Legislative intent is important. It must also be stated that in the interpretation of a statute, legislative intent must be ascertained from a consideration of the statute as a whole. The particular words, clauses, and phrases should not be treated as detached and isolated expression, but the whole and every part of the statute must be construed as to harmonize and give effect to all its provision wherever possible. (Summit Guaranty and Ins. Co., Inc. vs. Arnaldo, G.R. No. L-48546, February 29, 1988; Phil. Global Com. vs. Relova, G.R. No. 60548, November 10, 1986). Whenever the Supreme Court lays down a principle, it becomes a part of the law forming part of the contemporaneous interpretation of the law as of the time of its enactment. Once that doctrine is laid down, it is almost always followed. This is so because the doctrine of stare decisis enjoins adherence to judicial precedents. It requires courts in a country to follow the rule established in a decision of the Supreme Court thereof. (Fong Choy vs. Rep., 25 SCRA 24). However, there are times when the Supreme Court would abandon certain doctrines depending upon the conditions, as the doctrine does not require blind adherence to precedents. If the doctrine is now contrary to law, then the Court is duty bound to abandon it. (Lam Swee Sang vs. Commonwealth, 73 Phil. 309). A classic example of such an abandonment is in the case of Tan vs. Barrios, G.R. Nos. 85481-82, October 18, 1990. In the earlier cases of Olaguer vs. The Military Commission, and Cruz vs. Enrile, the Supreme Court laid

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Art. 8

down the rule that the Military Tribunals during Martial Law had no jurisdiction to try civilians. So, it said the proceedings and the decisions were void for lack of jurisdiction. When charged again for the same offense, the accused invoked double jeopardy. The Supreme Court said that Olaguer and Cruz were jurisprudential errors, abandoned the principle, and said that those who have already been tried and convicted, or acquitted, or served their sentence, or pardoned, can no longer be charged all over again for the same offense; otherwise, they would be put in double jeopardy. Kinds of interpretation. Lieber, in his work on Hermeneutics, gives the following classification of the different kinds of interpretation: 1. Close interpretation is adopted if just reasons connected with the character and formation of the text induce us to take the words in their narrowest meaning. This species of interpretation is also generally called literal. 2. Extensive interpretation, called also liberal interpretation, adopts a more comprehensive signification of the words. 3. Extravagant interpretation is that which substitutes a meaning evidently beyond the true one. It is therefore not genuine interpretation. 4. Free or unrestricted, interpretation proceeds simply in the general principles of interpretation in good faith, not bound by any specific or superior principle. 5. Limited or restricted, interpretation is when we are influenced by other principles than the strictly hermeneutic ones. 6. Predestined interpretation takes place if the interpreter, laboring under a strong bias of mind, makes the text subservient to his preconceived views or desires. This includes Artful interpretation, by which the interpreter seeks to give meaning to the text other than the one he knows to have been intended. (Lieber, Hermeneutics, pp. 54-60). Interpretation the office of the judiciary. As between the three departments of government, the office of construing and interpreting the written laws belongs to the judiciary ultimately, although the executive and legislative departments may

Art. 8

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37

be required, by necessity, to put their own construction upon the laws in advance of their exposition by the courts. When there arises a necessity for construing or interpreting the written laws, in order to discover their application to a given case or state of facts, the question of the meaning and intention of the legislature in this regard is a question of law, and as such it must be solved by the court; it is not for the determination of the jury. Decision or judgment defined. A judgment is the laws last word in a judicial controversy. It is the conclusion of the law upon the matters contained in the record, or the application of the law to the pleadings and to the facts, as they appear from the evidence in the cases and as found by the court, admitted by the parties or as deemed to exist upon their default in a course of judicial proceedings. (Zaner vs. Thrower, 155 Cal. 199 Pac. 371). Presumption against injustice. It is presumed that the Congress never intends to do injustice. Rather it is presumed that it shall do right and give justice. If a statute is doubtful or ambiguous, or fairly open to more than one construction that construction should be adopted which will avoid denial of right and justice. Thus, it was held in a number of cases that in construing statutes, it is not reasonable to presume that the legislature intended to violate a settled principle of natural justice or to destroy a vested right of property. Courts, therefore, in construing statutes, will always endeavor to give such interpretation to the language used as to make it consistent with reason and justice. (Peirce vs. City of Bangor, 105 Me. 413, 74 Atl. 1039; Plum vs. City of Kansas, 101 Mo. 525, 14 S.W. 657, 10 L.R.A. 371). For example, to quote from a decision in Missouri, although the constitution may not require notice to be given of the taking of private property for public use, yet when the legislature prescribes a mode by which private property may be taken for such purpose, we will, out of respect to it, suppose that it did not contemplate a violation of that great rule, recognized and enforced in all civil governments, that no one shall be injuriously affected in his rights by a judgment or decree resulting from a proceeding of which he had no notice and against which he could make no defense. (City of Boonville vs. Ormrods Admr., 26 Mo. 193). And on the general principle of avoiding injustice and absurdity, any construction should be rejected, if escape from it were possible, which

38

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Art. 9

enabled a person to defeat or impair the obligation of his contract by his own act, or otherwise to profit by his own wrong. (Maxwell, Interp., 2nd ed., 249). For example, a statute relating to corporations required an annual report to be made by every company organized under its provisions, and provided that, in case of failure to make such report, the trustees should be jointly and severally liable for all the debts of the company then existing and for all that shall be contracted before such report shall be made. This language was broad enough to include debts due from the corporation to individual trustees. But it was held that the fundamental rule, which lies at the very foundation of all law, that no person, by his own transgression, can create a cause of action in his own favor against another, must be applied to trustees of these corporations, and that debts of that nature were not within the provisions of the statute. (Briggs vs. Easterly, 62 Barb. [N.Y.] 51). Article 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. (6) A judge should not refrain from rendering a judgment just because there is no law that governs a particular case. In the absence however of a law, the customs, and traditions of the place can be applied, but they must be proved as facts according to the rules of evidence. In Chua Jan vs. Bernas, 34 Phil. 631, it was said that even if the judge is not acquainted with the rules regarding cockfighting, this does not justify him in dismissing the case. The rule however is inapplicable to criminal cases, for if there is no law that penalizes an act, the same is not punishable under the maxim nullum crimen nulla poena sine lege. Even if the law is obscure, it can still be applied and the rules of statutory construction can aid the court. How about if the law is unjust? The rule is dura lex sed lex. It is the duty of the court to apply it and not to tamper with it. In Go vs. Anti-Chinese League, 84 Phil. 468, it was held that it is the sworn duty of the judge to apply the law without fear or favor, to follow its mandate and not to tamper with it. The court cannot adopt a policy different from that of the law. What the law grants, the court cannot deny. But if the law is unjust or harsh, the Court may apply a soft hand in recommending executive clemency to an accused who was convicted. But it cannot refrain from applying the law. (See Art. 5, RPC). If the court tampers with the law and refuses to apply the policy it laid down, then, it is usurping the power of the Congress in

Art. 9

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declaring what the law is. In essence, it would be violating the principle of separation of powers. Judge is duty bound to apply the law. In People vs. Veneracion, 65 SCAD 10, 249 SCRA 247, October 12, 1995, a judge, despite finding that the accused was guilty of Rape with Homicide, refused to impose the death penalty because of his religious convictions. The Supreme Court said that the judge had no other alternative except to impose the death penalty. It said: Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, judges are guided by the Rule of Law, and ought to protect and enforce it without fear or favor, resist encroachments by governments, political parties (Act of Athens [1955]), or even the interference of their own personal beliefs. In the case at bench, respondent judge, after weighing the evidence of the prosecution and the defendant at trial found the accused guilty beyond reasonable doubt of the crime of Rape with Homicide. Since the law in force at the time of the commission of the crime for which respondent judge found the accused guilty was Republic Act No. 7659, he was bound by its provisions. Clearly, under the law, the penalty imposable for the crime of Rape with Homicide is not Reclusion Perpetua but Death. While Republic Act 7659 punishes cases of ordinary rape with penalty of Reclusion Perpetua, it allows judges the discretion depending on the existence of circumstances modifying the offense committed to impose the penalty of either Reclusion Perpetua only in the three instances. The law plainly and unequivocably provides that [W]hen by reason or on the occasion of rape, a homicide is committed, the penalty shall be death. The provision leaves no room for the exercise of discretion on the part of the trial judge to impose a penalty under the circumstances described, other than a sentence of death. We are aware of the trial judges misgivings in imposing the death sentence because of his religious convictions. While this Court

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sympathizes with his predicament, it is its bounden duty to emphasize that a court of law is no place for a protracted debate on the morality or propriety of the sentence, where the law itself provides for the sentence of death as a penalty in specific and well-defined instances. The discomfort faced by those forced by law to impose the death penalty is an ancient one, but it is a matter upon which judges have no choice. Courts are not concerned with the wisdom, efficacy or morality of laws. In People vs. Limaco, we held that: When. . . private opinions not only form part of their decision but constitute a decisive factor in arriving at a conclusion and determination of a case or the penalty imposed, resulting in an illegality and reversible error, then we are constrained to state our opinion, not only to correct the error but for the guidance of the courts. We have no quarrel with the trial judge or with anyone else, layman or jurist as to the wisdom or folly of the death penalty. Today, there are quite a number of people who honestly believe that the supreme penalty is either morally wrong or unwise or ineffective. However, as long as that penalty remains in the statute books, and as long as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of their private opinions. It is a well-settled rule that the courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of the Legislature which enacts them and the Chief Executive who approves or vetoes them. The only function of the judiciary is to interpret the laws and if not in disharmony with the Constitution, to apply them. And for the guidance of the members of the judiciary, we feel it incumbent upon us to state that while they, as citizens or as judges, may regard a certain law as harsh, unwise or morally wrong, and may recommend to the authority or department concerned, its amendment, modification, or repeal, still, as long as said law is in force, they must apply it and give it effect as decreed by the lawmaking body. (88 Phil. 35). Article 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. (n)

Art. 10

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41

Note that in the report of the Code Commission, it was said that: though the foregoing is also an unquestioned rule, yet, it is necessary to embody it in the Code, so that it may tip the scales in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law. (Report of the Code Commission, p. 78). When the law is clear, it must be applied, even if it is harsh or unjust, for the judge cannot change the mandate of the law. It has been said that equity is an attribute of justice and there can be no justice if the application of the law is not made with equity. Equity may correct and modify the bare written law, sometimes limiting its excessive generality, and at times extending it to supply deficiencies. Its mission is to temper the rigor of positive law as Justinian said, equity is justice sweetened with mercy; its purpose, therefore is to seek and follow the intention of the legislator rather than the bare legal provision, to adapt the rigid precept of law to the social life. (1 Valverde 211). In Cesario Ursua vs. CA, et al., G.R. No. 112170, April 10, 1996, 70 SCAD 123, it was said by the Supreme Court that time and again we have declared that statutes are to be considered in the light of the purposes to be achieved and the evils sought to be remedied. Thus, in construing a statute, the reason for its enactment should be kept in mind and the statute should be construed with reference to the intended scope and purpose. (People vs. Purisima, 86 SCRA 542). The court may consider the spirit and reason of the statute, where a literal meaning would lead to absurdity, contradiction, injustice or would defeat the clear purpose of the lawmakers. (People vs. Manantan, 5 SCRA 684). Presumption that Legislature or Congress intended right and justice. In construing a doubtful or ambiguous statute, the courts will presume that it was the intention of the lawmaking body to enact a valid, sensible, and just law, one that intends right and justice to prevail. Thus, it was held that it would not be consistent with the respect which one department of the government owes another, nor with the good of the state, for the courts to impute to the legislature any intention to exceed the rightful limits of its power, to violate the restraints which the Constitution imposes upon it, to disregard the principles of sound public policy, or to make a law leading to absurd, unjust, inconvenient, or impossible results, or calculated to defeat

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its own object. On the contrary, it is bounden duty of the judicial tribunals to assume that the lawmaking power has kept with integrity, good faith, and wisdom. Consequently, if the words of the law are doubtful or ambiguous, or if the statute is susceptible of more than one construction, the courts will lean in favor of that interpretation which will reconcile the enactment with the limitations of legislative power and with the dictates of justice and expediency. (Dekelt vs. People, 44 Colo. 525, 99 Pac. 330; Lake Shore & M.S. Ry. Co. vs. Cincinati, W. & M., Ry. Co., 116 Ind. 578, 19 n. E. 440). If the law is ascertained to be constitutionally valid, or if the question of its constitutionality is not raised, and the only doubt is as to its proper construction, the courts may listen to arguments drawn from considerations of public policy, or reason, justice and propriety, and be guided thereby in deciding in favor of one or the other two permissible interpretations. (Black, Const. Law [3rd Ed.]. 70, Black Inter. of Laws 105). Liberal construction of adoption statutes in favor of adoption. It is settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption. (Rep. vs. CA, et al., 205 SCRA 356). The interests and welfare of the adopted child are of primary and paramount consideration, hence, every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law. (Bobanovic, et al. vs. Montes, et al., 142 SCRA 485). Lastly, Article 10 of the New Civil Code provides that: In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. This provision, according to the Code Commission, is necessary so that it may tip the scales in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law. Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mothers surname, there is no reason why she should not be allowed to do so. (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, Honorato Catindig, Petitioner, G.R. No. 148311, March 31, 2005 [Gutierrez, J.]).

Arts. 11-12

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Article 11. Customs which are contrary to law, public order or public policy shall not be countenanced. (n) Article 12. A custom must be proved as a fact, according to the rules of evidence. (n) Custom is the juridical rule which results from a constant and continued uniform practice by the members of a social community, with respect to a particular state of facts, and observed with a conviction that it is juridically obligatory. (1 Tolentino, Civil Code, p. 38, 1974 ed.). But custom must be proven as a fact, according to the rules of evidence. (Art. 12, New Civil Code). In order that a custom may be considered as a source of a right, the following requisites must be proven: (1) (2) (3) (4) (5) (6) plurality of acts; uniformity of acts; general practice by the great mass of the people of the country or community; general conviction that it is the proper rule of conduct; continued practice for a long period of time; and conformity with law, morals and public policy. (1 Manresa 82).

Hence, in Martinez vs. Van Buskirk, 18 Phil. 79, it was said that a cochero who was helping a passenger unload his cargo and left the horse unattended to, was not held to be negligent, even if the horse galloped away, as a result of which the caretela caused injuries to a pedestrian. It was held that, that was the custom of the place. Note however, that while customs may be applied in lieu of a law, the same cannot be done if they are contrary to law, public order or public policy, for the latter cannot be countenanced. Customs should not be against public policy. It is presumed that the legislature or Congress intends its enactments to accord with the principles of sound policy and the interests of public morality, not to violate them; and due weight should be given to this presumption in the construction of a doubtful or ambiguous statute. (Black, Interpretation of Laws, 134; Aircardi vs. State, 19 Wall. 635, 22 L. Ed. 215). What is said of laws in this re-

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gard can very well be said of customs with the same truth and effect. It must always be supposed that the Congress, in adopting this provision concerning customs, designs to favor and foster, rather than to contravene, that public policy which is based upon the principles of natural justice, good morals, and the settled wisdom of the law as applied to the ordinary affairs of life. For instance, there seems to be a custom in Moroland where sultan or a datu is permitted, in certain cases, to be a judge in his own cause, or to determine his right to an office by reason of blood or kinship. (Commonwealth vs. McCloskey, 2 Rawle [Pa.] 369; Day vs. Savadge, Hob. 85; Queen vs. Owens, 2 El. & El. 86). It results, therefore, that if a custom to be repugnant to public policy, public order, or law it ought to be restrained so that it may comport with those principles. Nor should custom be allowed or permitted which disturbs public order or which tends to incite rebellion against constituted authorities or resistance against public commands duly issued and legally promulgated. While the courts should be ever vigilant to protect the rights and customs of the people, they nevertheless should be equally vigilant that customs destructive of the public order or subversive of public policy and morality be curbed rather than sanctioned. (Garcia & Alba, Civil Code of the Phils. p. 34, 1950 Ed.). Article 13. When the laws speak of years, months, days or nights, it shall be understood that years are of three hundred sixtyfive days each; months, of thirty days; days, of twenty-four hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days which they respectively have. In computing a period, the first day shall be excluded and the last day included. (7a) The law says that in the computation of a period, the first day shall be excluded and the last day shall be included. Illustration: A filed a suit at the RTC, Manila, against B. Summons was served upon B on September 1, 1996. In computing the 15-day period to file a responsive pleading, September 1, 1996 should not be included. The 15-day period should be computed from September 2, because in the computa-

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tion of a period, the first day shall be excluded and the last day shall be included. The reason for the law is that you can no longer complete a whole day on September 1, 1996. Article 14. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations. (8a) The law makes obligatory penal laws and those of public safety and security upon all people who live or sojourn on Philippine territory. So, even if an American citizen is a mere tourist in the Philippines, he is liable for a crime if he commits one on Philippine territory. Illustration: Rudy is an American citizen. He is having his vacation in Manila. He raped Jane inside a motel. He can be charged with rape and be made liable. He cannot invoke his being a foreigner because everybody who sojourns on Philippine territory is bound by Philippine penal laws and those of public safety. But suppose Rudy is an American ambassador, the rule would be different, because the obligatory force of Philippine penal laws and those of public safety is subject to accepted principles of international law and treaty stipulations. It is a well-accepted principle of international law that ambassadors are granted diplomatic immunities. The remedy against him is not criminal prosecution, but for him to be recalled by his government on the ground that he is a persona non grata. Thus, under the principle of extraterritoriality, there are foreigners who are exempted from the operation of Philippine laws, like when the offense is commited by a foreign sovereign or diplomatic representatives while on Philippine territory; or when the crime is committed inside a public or armed vessel of a foreign country. But a merchant vessel is not covered by the principle of extraterritoriality, for the moment it enters the Philippines, it subjects itself to the laws of our country; hence, if an offense is committed within said vessel

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Art. 14

while on Philippine territory or post, the offense constituting a breach of public order, the same is triable here. (People vs. Bull, 15 Phil. 7; U.S. vs. Wong Cheng, 46 Phil. 729; U.S. vs. Look Chaw, 18 Phil. 573) Exterritoriality is that fiction in international law by virtue of which certain foreign persons and their things are exempted from the jurisdiction of a state on the theory that they form an extension of the territory of their own state. This is based on practice without treaty stipulations. Extraterritoriality is the exemption of foreign persons from laws and jurisdiction of a state in which they presently reside, an exemption which can only exist by virtue of a treaty stipulation to this effect. Offenses committed on board a vessel of foreign registry. Certain definite and well-established principles of international law govern the prosecution of offenses committed on board war or merchant vessels. In a leading case, Chief Justice Marshall said: The implied license under which vessels enter a friendly port may reasonably be construed as containing exemption from jurisdiction of the sovereign within whose territory she claims the rights of hospitality. The principle was accepted by the Geneva Arbitration Tribunal, which announced that the privilege of exterritoriality accorded to vessels of war has been admitted in the law of nations; not as an absolute right, but solely, as a proceeding founded on the principle of courtesy and mutual deference between nations. (2 Moore, Int. Law Dig., Secs. 252; 254; Hall, Int. Law, Sec. 55; Taylor, Int. Law, Sec. 256). Thus, in the Philippines, such vessels are therefore permitted during times of peace to come and go freely. Local officials exercise but little control over the actions, and offense committed by their crews are justiciable by their own officers acting under the laws to which they primarily owe their allegiance. This limitation upon the general principle of territorial sovereignty is based entirely upon comity and convenience, and finds its justification in the fact that experience shows that such vessels are generally careful to respect local laws and regulations which are essential to the health, order, and well-being of the port. (U.S. vs. Bull, 15 Phil. 7).

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Conflicting theories on territoriality and exterritoriality. The degree of exemption from local jurisdiction of merchant vessels of foreign registry is predicated upon two well known theories namely, the French theory and the English theory. The first emphasizes nationality and holds that the matters happening on board the merchant vessel which do not concern the tranquility of the port or persons foreign to the crew, are justiciable only by the courts of the country to which the vessel belongs. The second theory, on the other hand, emphasizes the principle of territoriality, that is, it maintains that as soon as merchant vessels enter the ports of a foreign state, they become subject to local jurisdiction on all points in which the interests of the country are touched. (U.S. vs. Bull, 15 Phil. 7; People vs. Cheng, 46 Phil. 729). The view taken by the United States in this respect holds that when a merchant vessel enters a foreign port, it is subject to the jurisdiction of local authorities, unless the local sovereignty has by act of acquiescence or through treaty arrangements consented to waive a portion of such jurisdiction. Accordingly, in a case (U.S. vs. Kiekelman, 92 U.S. 520), the Court held that merchant vessels of one country visiting the ports of another for the purpose of trade, subject themselves to the laws which govern the ports they visit, so long as they remain; and this as well in war as in peace, unless otherwise provided by treaty. (U.S. vs. bull, 15 Phil. 7; People vs. Cheng, 46 Phil. 729). Rule in this jurisdiction. The English theory as qualified by the American theory obtains in this jurisdiction. Thus, where the master of a Norwegian vessel failed to provide suitable means for securing animals while transporting them therein from the port of Formosa through the high seas, and these forbidden conditions punishable under our laws continued when the vessel enters our territorial waters, the offense is subject to local jurisdiction and triable in our courts. (U.S. vs. Bull, 15 Phil. 7). Similarly, the offense of smoking opium on board a foreign merchant vessel at anchor within Philippine waters constitutes a breach of public order here established and a serious violation of the policy of the Legislature in the enactment of the law, and, as such, justiciable in our courts. (U.S. vs. Cheng, 46 Phil. 729). Likewise, although the mere possession of a thing of prohibited use in the Philippines on board of foreign vessel in transit through any of its ports does not, as a general rule, constitute an offense triable in our courts, such vessel, by fiction of law, being regarded as an exten-

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Art. 15

sion of the nationality of the country whose flag it flies, the same rule does not apply where the prohibited article is landed on Philippine soil, for then, the act constitutes an open violation of the laws of this country. (U.S. vs. Look Chow, 18 Phil. 573). But an offense, as theft, committed on board an army transport, or any foreign merchant vessel, while the vessel is navigating on the high seas, is not triable in the Philippine courts. (U.S. vs. Fowler, 1 Phil. 614). Article 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. (9a) Wherever a Filipino is, Philippine law shall govern him with respect to his family rights and duties, status, condition, and legal capacity. This is true even if he is living abroad. If A and B, both Filipino citizens, are married but they are living abroad, the law that governs them with respect to their family rights and duties, status, condition and legal capacity is Philippine law. So that, the mandate under Article 68 of the Family Code that the husband and wife are obliged to live together, love one another, help, support and observe mutual respect and fidelity would still apply. Suppose in Sweden, where they are living, the law allows them to live separately and maintain other partners, the same cannot apply to them, because what governs their relationship is Philippine law. Or, if in Sweden, there is no obligation to support one another, still the law cannot apply, because under Philippine law, they are obliged to support one another. Let us say that A, in the problem above, left his spouse in the Philippines and went to Hawaii. After five (5) years, he divorced his spouse. Such a divorce decree is void and cannot be recognized in the Philippines because of our adherence to the nationality theory that Philippine law governs the family rights and duties, status, condition of Filipino citizens. Definitely, a divorce decree obtained abroad would affect the status and condition of A and B. Furthermore, the divorce decree is contrary to public policy, especially with the provisions of Article 17 of the Civil Code, where the law says that such a declaration of public policy cannot be rendered ineffective by a judgment promulgated in a foreign country. But let us say that A is an American citizen and B is a Filipina. They went to the USA where A is a national. A divorced B. The di-

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vorce decree is valid and B can even get married now in view of Article 26, paragraph 2 of the Family Code, which provides that if there is a mixed marriage and the foreigner obtains a divorce decree against the Filipino capacitating the foreigner to remarry under his national law, then, the Filipino shall also be capacitated to remarry in the Philippines. This law has equalized the unfair situation in the Civil Code where regardless of whether the marriage was mixed or not, if the foreigner divorced the Filipino, the latter could not remarry. To trace the history of Article 26, paragraph 2 of the Family Code, the case of Van Dorn vs. Romillo, Jr., 139 SCRA 139, is relevant. In this case, the Supreme Court recognized the effects of a foreign divorce, saying, that after the foreigner divorced the Filipino wife, the marriage bond was severed, and that there was no longer any duty to love, and to live, support and no more right of inheritance. Absolute divorce decree granted by U.S. court, between Filipina wife and American husband, held binding upon the latter. Case: Alice Reyes Van Dorn vs. Hon. Manuel V. Romillo, Jr., et al. L-68470, October 8, 1985, 139 SCRA 139 Facts: Alice Reyes, a Filipina, married Richard Upton, an American, in Hongkong in 1972. They established residence in the Philippines and had two children. In 1982, the wife sued for divorce in Nevada, U.S.A., on the ground of incompatibility. She later married one Theodore Van Dorn in Nevada. In 1983, Upton sued her before the Regional Trial Court, Branch CXV, in Pasay City, asking that she be ordered to render an accounting of her business known as the Galleon Shop, in Ermita, Manila, which Upton alleged to be a conjugal property. He also prayed that he be declared with right to manage the conjugal property. The defendant wife moved to dismiss the complaint on the ground that the cause of action was barred by a previous judgment in the divorce proceedings wherein he had acknowledged that the couple had no community property. From a denial of that motion, she went to the Supreme Court on a petition for certiorari and prohibition.

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Art. 15

Held: The pivotal fact in this case is the Nevada divorce of the parties. The Nevada court had jurisdiction over the parties. There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on Upton as an American citizen; hence, he cannot sue petitioner, as her husband, in any State of the Union. While it is true that owing to the nationality principle under Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorce, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. In this case, the divorce in Nevada released Upton from the marriage from the standards of American law. Thus, pursuant to his national law, he is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioners husband entitled to exercise control over conjugal assets. He is also estopped by his own representation before the Nevada court from asserting his right over the alleged conjugal property. To maintain, as private respondent does, that under our laws petitioner has to be considered still married to him and still subject to a wifes obligations under Article 109, et seq., of the Civil Code, cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served. It must be observed that for Article 26, paragraph 2 of the Family Code to apply, the following requisites must be present: 1. 2. the marriage must be originally a mixed marriage; the foreigner should be the one to initiate the divorce petition, and if granted, it should capacitate him under his national law to remarry.

If all these requisites are present, then, the Filipino can also be capacitated to remarry. However, if the Filipino was the one who initiated the petition for divorce, and it was granted, thus capacitating the foreigner-spouse to remarry, the law is inapplicable and the Filipino cannot remarry. This is so because of the strict interpretation and application of our marriage laws. The general rule in Article 15, of the Civil Code would apply.

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Or, let us say that A and B, both Filipino citizens, are married. A went abroad and later on embraced American citizenship and divorced B. Can B remarry in the Philippines? The answer is, No. Article 26, paragraph 2 of the Family Code does not apply; Article 15 of the Civil Code applies. This situation is a return to the old unfair situation in the Civil Code, prior to Van Dorn vs. Romillo and the Family Code, for what governs the status, condition and legal capacity of B is Philippine law. Something must be done with this situation as it is unfair, because A can now get married without fear of being prosecuted under Philippine laws since he is beyond the reach of the obligatory force of our penal laws. Furthermore, he is no longer governed by Philippine laws since he is now an American citizen. Yet, B is left hanging as she is still considered married from the viewpoint of Philippine laws. Only a legislative enactment can remedy the situation. Or, even if we are to assume that A and B are residing in the U.S.A., still, B cannot marry, because what governs his legal capacity and status is Philippine law. This is so even if the laws of the USA would say that after their divorce, B can get married. The nationality principle would still apply. Note that Van Dorn vs. Romillo was treated as an exceptional situation which triggered the adoption of Article 26(2) of the Family Code, erasing the unfair situation in the Civil Code. Divorce obtained abroad by Filipinos. A Filipino wife remains the lawful wife of the Filipino husband despite a decree of divorce obtained abroad by the wife. Hence, the wife is entitled to inherit from the husband as the latters surviving spouse despite the fact that she was the one who divorced him. However, if the wife was already a foreigner at the time of the divorce, she ceases to be the lawful wife of the Filipino husband and loses her right to inherit from him as his surviving spouse. (Quita vs. Dandan, G.R. No. 124862, 22 December 1998, 101 SCAD 892). The reason for the rule is that, such divorce between Filipino citizens abroad even if valid where it was obtained, is void and inexistent. Divorce; its recognition in the Philippines. A divorce decree obtained in a foreign country may be recognized in the Philippines. A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national

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Art. 15

law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proved. Our courts do not take judicial notice of foreign laws and judgments; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence. (Grace Garcia vs. Rederick A. Recio, G.R. No. 138322, October 2, 2002). Case: Garcia vs. Recio G.R. No. 138322, October 2, 2002 Facts: Rederick Recio, a Filipino, got married to Editha Samson, an Australian citizen, but the marriage was dissolved by a divorce decree on May 18, 1989 issued by an Australian family court. On June 26, 1992, Rederick became an Australian citizen and got married to Grace on January 12, 1994. They lived separately without judicial decree. On March 3, 1998, she filed a complaint for declaration of nullity of her marriage with Rederick on the ground of bigamy stating that prior to the marriage, she did not know that her husband had a previous marriage. On July 7, 1998, he was able to obtain a decree of divorce from her, hence, he prayed in his answer to the complaint that it be dismissed on the ground that it stated no cause of action. The court dismissed the case on the basis of the divorce which dissolved the marriage and recognized in the Philippines. Before the Supreme Court, she raised the following issues: 1. 2. Whether the divorce between Editha Samson and himself was proven; Whether his legal capacity to marry her was proven.

Reiterating jurisprudential rules earlier laid down, the Supreme Court Held: (1) No, Philippine law does not provide for absolute divorce; hence, our courts cannot grant it. A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 15 and 17 of the Civil Code. (Tenchavez vs. Escano, 15 SCRA 355; Barretto Gonzalez vs. Gonzalez, 58 Phil. 67). In mixed marriages involving a Filipino and a foreigner, Article 26 of the Family Code

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allows the former to contract a subsequent marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry. (Van Dorn vs. Romillo, Jr., 139 SCRA 139; Pilapil vs. Ibay-Somera, 174 SCRA 653). A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws. (Van Dorn vs. Romillo, supra.). The same must be proved as a fact according to the rules of evidence. Therefore, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. Presentation solely of the divorce decree is insufficient. (Garcia vs. Recio, supra.). Necessity to prove legal capacity. (2) If a foreigner who was divorced seeks to obtain a marriage license in the Philippines, it is incumbent upon him to prove his legal capacity. If the marriage was dissolved by reason of divorce, he has to file a sworn statement as to how the marriage was dissolved (Art. 11, FC) and furnish the local civil registrar with the judgment (Art. 13, FC) and must register the same with the local civil registrar to bind third persons. (Art. 52). Before a foreign judgment is given presumptive evidentiary value, the document must first be presented and admitted in evidence. A divorce obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself. (Rule 130, Sec. 3, Rules of Court). The decree purports to be a written act or record of an act of an official body or tribunal of a foreign country. (Sec. 19, Rule 130). Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. (Garcia vs. Recio, supra.). Our courts do not take judicial notice of foreign laws. It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. (Wildvalley Shipping Co., Ltd. vs. CA,

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G.R. No. 119602, October 6, 2000). Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function. (Delos Angeles vs. Cabahug, 106 Phil. 839). The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative. (Garcia vs. Recio, supra.). Proof of legal capacity. Concept and kinds of divorce. In its strict legal sense, divorce means the legal dissolution of a lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo matrimonti and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and leaves the bond in full force. If what is presented is a decree nisi or an interlocutory decree a conditional or provisional judgment of divorce, it is in effect the same as a separation from bed and board, although an absolute divorce may follow after the lapse of the prescribed period during which no reconciliation is effected. (Garcia vs. Recio, supra.). Reason why foreign divorce is not recognized in the Philippines. Being contrary to law and morals, it is a rule in the Philippines that foreign divorces are not recognized by our laws. In fact, laws and determinations in a foreign country are not binding in the Philippines even if they are valid therein. Of course, if such divorce is obtained by Filipinos abroad, the said rule applies. If it is obtained by foreigners and valid under their national laws, the same can be given legal effect in the Philippines subject to the conditions cited above. In Van Dorn vs. Romillo, Jr. (139 SCRA 139), it was held that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of public policy and morality. In the same case, it was said that aliens may obtain divorces abroad, provided they are valid according to their national law. Citing this landmark case (Van Dorn vs. Romillo), it was said that once proven that the spouse was no longer Filipino citizen when

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he obtained the divorce from the other spouse, former spouse could very well lose her right to inherit from him. In Pilapil vs. Ibay-Somera (174 SCRA 653), the Court recognized the divorce obtained by the respondent in his country and said that due to the divorce decree, he can no longer prosecute his wife for adultery as the marriage bond has already been severed. (Llorente vs. CA, G.R. No. 124371, November 23, 2000). The two cases cited above are the predecessors of Article 26(2) of the Family Code which expressly recognize the effects of foreign divorces subject to the conditions that the marriage must have been mixed from its inception and not thereafter; that it was the foreigner who initiated the complaint for divorce; and the decree capacitated the foreigner to remarry under his/her national law. If commenced by the Filipino, then, Article 26(2) does not apply because of the restrictive nature of Philippine law on marriage. Effect of foreign divorce. In Paula Llorente vs. CA, G.R. No. 124371, November 23, 2000, Lorenzo and Paula Llorente were married in Nabua, Camarines Sur. Lorenzo was enlisted to the US Army and became an American citizen. His wife was left in the Philippines but when he came back, he found out that she was living-in with his brother. He went back to the USA and filed a petition for divorce which was granted. It became final and executory. When he came back to the Philippines, he married Alicia with whom he had children. He executed a will bequeathing all his properties to his wife Alicia and their children. When his will was submitted to probate, Paula filed a petition for the issuance of letters testamentary in her favor contending that she is the surviving spouse; that various properties were acquired during their marriage and that his will encroached on her legitime and 1/2 shares in the conjugal property. The petition was given due course. The RTC declared one of the children of Lorenzo as only an illegitimate child entitling her to 1/3 of the estate and 1/3 of the free portion. The CA modified the decision declaring Alicia as a co-owner of whatever properties she and the deceased husband may have acquired during their converture. Question: Is Alicia entitled to inherit? Why?

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Art. 15

Answer: Yes, because it is clear from his will that he intended to bequeath his properties to his second wife and children. His wishes cannot be frustrated since he was a foreigner, not covered by Philippine Laws on family rights and duties, status, condition and legal capacity. As to who inherits from him is governed by foreign law, his national law. Question: Is the divorce decree obtained by Lorenzo valid? Why? Answer: Yes, owing to the nationality principle embodied in Article 15, NCC which covers only Philippine nationals. Such policy covers foreign divorces which are valid in the Philippines even though obtained abroad, provided they are valid according to their national law. (Van Dorn vs. Romillo, Jr., 139 SCRA 139). And since the man was no longer a Filipino citizen when he obtained the divorce, the former wife lost her right to inherit. (Quita vs. CA, 300 SCRA 406). Effect of foreign divorce obtained while action for nullity of the marriage is pending. Case: Roehr vs. Rodriguez, et al. G.R. No. 142820, June 20, 2003 (Quisumbing, J.) Facts: Wolfang O. Roehr, a German citizen married Carmen Rodriguez, a Filipina in 1980 in Germany. They begot two children. In 1996, Carmen filed an action for declaration of nullity of their marriage. A motion to dismiss was denied but in 1997 while a second motion to dismiss was pending, Wolfang obtained a decree of divorce in Germany and granted parental custody over their children to him. An order granting the Motion to Dismiss was issued because of the dissolution of the marriage. A motion was filed asking that the case be set for hearing for the purpose of determining the issues of custody of children and the distribution of their properties. It was

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opposed on the ground that there was nothing to be done anymore as the marital tie of the spouses had already been severed by the divorce decree and that the decree has already been recognized by the court in its order. The lower Court issued an order partially setting aside the former order for the purpose of tackling the issues of property relations of the spouses as well as support and custody of their children. This order was questioned on the basis of the contention that the divorce decree obtained in Germany had already severed the marital relations of the parties, hence, nothing can be done anymore. Is the contention proper? Why? Held: No. In Garcia v. Recio, 366 SCRA 437 (2001), Van Dorn v. Romillo, Jr., 139 SCRA 139 (1985) and Llorente v. Court of Appeals, 345 SCRA 592 (2000), it has been consistently held that a divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. Relevant to the present case is Pilapil v. Ibay-Somera, 174 SCRA 653 (1989), where the Court specifically recognized the validity of a divorce obtained by a German citizen in his country, the Federal Republic of Germany. It was held in Pilapil that a foreign divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons. In this case, the divorce decree issued by the German court dated December 16, 1997 has not been challenged by either of the parties. In fact, save for the issue of parental custody, even the trial court recognized said decree to be valid and binding, thereby endowing private respondent the capacity to remarry. Thus, the present controversy mainly relates to the award of the custody of their two children, Carolynne and Alexandra Kristine, to petitioner. As a general rule, divorce decrees obtained by foreigners in other countries are recognizable in our jurisdiction, but the legal effects thereof, e.g., on custody, care and support of the children, must still be determined by our courts. Before our courts can give the effect of res judicata to a foreign judgment, such as the award of custody to petitioner by the German court, it must be shown that the parties opposed to the judgment had been given ample opportunity to do so on grounds allowed under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48, 1997 Rules of Civil Procedure), to wit:

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SEC. 50. Effect of foreign judgments. The effect of a judgment of a tribunal of a foreign country, having jurisdiction to pronounce the judgment is as follows: (a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing; (b) In case of a judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title; but the judgment may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. It is essential that there should be an opportunity to challenge the foreign judgment, in order for the court in this jurisdiction to give effect to it. Our Rules of Court clearly provide that with respect to actions in personam, as distinguished from actions in rem, a foreign judgment merely constitutes prima facie evidence of the justness of the claim of a party and, as such, is subject to proof to the contrary. In the present case, it cannot be said that private respondent was given the opportunity to challenge the judgment of the German court so that there is basis for declaring that judgment as res judicata with regard to the rights of petitioner to have parental custody of their two children. The proceedings in the German court were summary. As to what was the extent of private respondents participation in the proceedings in the German court, the records remain unclear. The divorce decree itself states that neither has she commented on the proceedings nor has she given her opinion to the Social Services Office. Unlike petitioner who was represented by two lawyers, private respondent had no counsel to assist her in said proceedings. More importantly, the divorce judgment was issued to petitioner by virtue of the German Civil Code provision to the effect that when a couple lived separately for three years, the marriage is deemed irrefutably dissolved. The decree did not touch on the issue as to who the offending spouse was. Absent any finding that private respondent is unfit to obtain custody of the children, the trial court was correct in setting the issue for hearing to determine the issue of parental custody, care, support and education mindful of the best interests of the children. This is in consonance with the provisions in the Child and Youth Welfare Code that the childs welfare is always the paramount consideration in all questions concerning his care and custody.

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On the matter of property relations, petitioner asserted that public respondent exceeded the bounds of its jurisdiction when it claimed cognizance of the issue concerning property relations between petitioner and private respondent. Private respondent herself has admitted in Par. 14 of her petition for declaration of nullity of marriage dated August 26, 1996 filed with the RTC of Makati, subject of this case, that: petitioner and respondent have not acquired any conjugal or community property nor have they incurred any debts during the marriage. Herein petitioner did not contest this averment. Basic is the rule that a court shall grant relief warranted by the allegations and the proof. Given the factual admission by the parties in their pleadings that there is no property to be accounted for, respondent judge has no basis to assert jurisdiction in this case to resolve a matter no longer deemed in controversy. In sum, it can be said that respondent judge may proceed to determine the issue regarding the custody of the two children born of the union between petitioner and private respondent. Private respondent erred, however, in claiming cognizance to settle the matter of property relations of the parties, which is not an issue. Foreign judgments contrary to public order, morals. Litigants cannot compel the courts to approve of their own actions or permit the personal relations of the citizens of these Islands to be affected by decrees of divorce of foreign courts in a manner which our government believes is contrary to public order and good morals. (Barreto vs. Gonzales, 58 Phil. 67). Article 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a) There is no dispute that real and personal properties are governed by the law of the place where they are situated. This is a restatement of the principle of lex rei sitae.

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There are four aspects of succession which are governed by the law of the person whose succession is under consideration, and they are: (1) (2) (3) (4) the order of succession; the amount of successional rights; the intrinsic validity of the will (Art. 16, New Civil Code); and the legal capacity to succeed. (Art. 1039, New Civil Code).

Under the nationality principle, all these aspects of succession are governed by the national law of the person whose succession is under consideration. Nationality theory applied. Case: Testate Estate of Bohanan vs. Bohanan, et al. 106 Phil. 997 Facts: This is an appeal from the decision of the lower court dismissing the objections filed by the oppositors, the wife and the two children of the deceased, to the project of partition submitted by the executor, Phil. Trust Co., and approving the said project of partition. The testator was born in Nebraska, had properties in California, and had a temporary, although long, residence in the Philippines. In his will executed in Manila, he stated that he had selected as his domicile and permanent residence, the State of Nevada, and therefore at the time of his death, he was a citizen of that state. In his will, he disposed so much of his properties in favor of his grandson, his brother and his sister, leaving only a small amount of legacy to his children and none to his wife. The same was questioned by the surviving wife and the surviving children regarding the validity of the testamentary provisions disposing of the estate, claiming that they have been deprived of their legitime under Philippine law, which is the law of the forum. With respect to the wife, a decree of divorce was issued between the testator and the wife after being married for 13 years; thereafter, the wife married another man whereby this marriage was subsisting at the time of the death of the testator.

Art. 16

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Issue: Whether or not the testamentary dispositions, especially those for the children, which are short of the legitimes given them by the Civil Code of the Philippines are VALID. Held: Article 10 of the Old Civil Code, now Article 16 of the New Civil Code, provides that the validity of testamentary dispositions are to be governed by the national law of the person whose succession is in question. In the case at bar, the testator was a citizen of the State of Nevada. Since the laws of said state allow the testator to dispose of all his property according to his will, his testamentary dispositions depriving his wife and children of what should be their legitimes under the laws of the Philippines, should be respected and the project of partition made in accordance with his testamentary dispositions should be approved. Case: Bellis vs. Bellis 20 SCRA 358 Facts: Amos G. Bellis was a citizen and resident of Texas at the time of his death. Before he died, he had made two wills, one disposing of his Texas properties, the other disposing of his Philippine properties. In both wills, his recognized illegitimate children were not given anything. Texas has no conflict rule governing successional rights. Furthermore, under Texas Law, there are no compulsory heirs and therefore no legitimes. The illegitimate children opposed the wills on the ground that they have been deprived of their legitimes to which they should be entitled, if Philippine law were to apply. Held: Said children are not entitled to their legitimes for under Texas Law (which is the national law of the deceased), there are no legitimes. The renvoi doctrine cannot be applied. Said doctrine is usually pertinent where the decedent is a national of one country, and a domiciliary of another. A provision in a foreigners will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void for his national law, in this regard, cannot be ignored.

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Note: Under Article 16, New Civil Code, the order of succession, the amount of successional rights, and the intrinsic validity of the will shall be governed by the national law of the person whose succession is under consideration. Under Art. 1039, NCC, the capacity to succeed shall be governed by the national law of the decedent. When the domiciliary theory applies. In Aznar vs. Garcia, 7 SCRA 95, a citizen of California, USA, was domiciled in the Philippines. He died, survived by two (2) acknowledged natural children. In his will, he left an estate worth P500,000.00 to one of his children and P3,000.00 to the other. Under his national law, however, the disposition of his estate or any question as to the validity of testamentary provisions shall be governed by his domiciliary law. The child who was given only P3,000.00 questioned the validity of the disposition in favor of the other. The Supreme Court held for the child who was given P3,000.00 only. It was said that while Article 16 of the Civil Code states that the intrinsic validity of testamentary provisions shall be governed by the decedents national law, nevertheless, the Civil Code of California declares that the decedents domiciliary law shall govern. Hence, the question shall be referred back to the decedents domicile. Concept of renvoi. Renvoi means referring back. Senator Salonga asked the following question on renvoi: When the conflicts rule of the forum refers a matter to a foreign law for decision, is the reference to the corresponding conflicts rule of the foreign law, or is the reference to the purely internal rules of the foreign system a case in renvoi? Justice Desiderio Jurado likewise gave an example of an application of the principle of renvoi as follows: Example: A and B, both Filipino citizens, are married. They have five (5) legitimate children. They are all living in California. A executed a will instituting B as his sole heir, thereby depriving the children of their shares in the estate. This cannot be done by A because it is violative of the order of succession, for the legitimate children are the first in the order of succession. And since the legitimate children are deprived and totally omitted in the will, it also

Art. 17

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goes into the intrinsic validity of the will as there is preterition. (Art. 854, New Civil Code). It is also violative of the rule that governs the amount of successional rights of the legitimate children, since the law provides that their legitime is 1/2 of the estate, B, getting only a share equal to that of a legitimate child. (Art. 892, New Civil Code). In all these circumstances, the national law of A governs, that even if American law says that A can give all his estate to anyone, still his national law would govern. Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a) Performance and enforcement. While matters pertaining to the due execution of contracts are regulated according to the law of the place of their execution, on the other hand, matters connected with the performance of contracts are regulated by the law in force at the place of performance. Remedies, such as the bringing of suit, admissibility of evidence, and the statute of limitations, depend upon the law of the place where the action is brought. (Govt. of Phil. vs. Frank, 13 Phil. 236). The law is an application of the principle of lex loci celebrationis. If a Filipino executes a contract abroad, the forms and solemnities of the same may be governed by the law of the place where the same is executed. Illustration: A Filipino while in Hawaii executed a will instituting his heirs and disposing of his properties to them. There

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were only two (2) witnesses to the will who did not sign the same in the presence of A and of one another. Instead, the will was signed in three (3) different places. Let us assume that the laws in Hawaii would allow the signing of the will not in the presence of the testator and the witnesses and still the will is valid under such laws. The will is valid in the Philippines because the solemnities of contracts or wills may be governed by the laws of the country where they are executed. But if the will was executed before the Philippine consul of Hawaii, then, the forms and solemnities under Philippine law shall govern. In this case, there must be three (3) instrumental witnesses and that the will must be signed by the testator in the presence of the three (3) witnesses and the three witnesses must sign it in the presence of the testator and of one another, otherwise, the will is void. Effects of laws, etc. on prohibitive laws concerning persons in the Philippines. Article 17 of the Civil Code says that if there is a law or determination or judgment in a foreign country, the same shall not render ineffective prohibitive laws concerning persons, their property or acts of Filipinos. Example: A and B are Filipino citizens. They are married. While vacationing in Las Vegas, Nevada, they divorced each other. The divorce decree cannot be valid in the Philippines as it is contrary to public policy and morals. While it may be valid in Nevada, it is void in the Philippines and hence, it cannot render ineffective Philippine law that says that what governs the family rights and duties, status, condition and legal capacity of the Filipinos is Philippine law. Or, if A and B would agree to separate properties extrajudicially and the agreement is valid in Nevada, that is void in the Philippines, because the spouses cannot have separation of properties during the marriage without judicial order. (Art. 134, Family Code).

Arts. 18-19

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Or, if A and B agree to maintain live-in partners, the agreement is void as it is contrary to morals. Even if the agreement is valid in Nevada, the same is void in the Philippines since it is contrary to morals. Doctrine of Lex Loci Contractus. If an airline ticket is purchased in the Philippines, and rewritten abroad, the liability of the airline company in case of breach the contract is governed by Philippine Law. This is the doctrine of lex loci contractus. According to the doctrine, as a general rule, the law of the place where a contract is made or entered into governs with respect to its nature and validity, obligation and interpretation. In Zalamea vs. Court of Appeals, 228 SCRA 23, the Court applied the doctrine of lex loci contractus. According to the doctrine, as a general rule, the law of the place where a contract is made and entered into governs with respect to its nature and validity, obligation and interpretation. This has been said to be the rule even though the place where the contract was made is different from the place where it is to be performed, and particularly so, if the place of the making and the place of performance are the same. Hence, the court should apply the law of the place where the airline ticket was issued, when the passengers are residents and nationals of the forum and the ticket is issued in such State by the defendant airline. (United Airlines, Inc. vs. CA, April 20, 2001, 357 SCRA 99). Article 18. In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code. (16a) Chapter 2 Human Relations Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith. Article 19 of the Civil Code is a statement of principle that supplements but does not supplant a specific provision of law. (Capitle, et al. vs. Vda. de Gaban, et al., G.R. No. 146890, June 8, 2004).

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Definition of Terms. Right. Every well-grounded claim on others is called a right, and, since the social character of man gives the element of mutuality to each claim, every right conveys along with it the idea of obligation. (2 B.L.D., 2960). Duty. A human action which is exactly conformable to the laws which requires us to obey them. A moral obligation or responsibility. It differs from a legal obligation, because a duty cannot always be enforced by the law; it is our duty, for example, to be temperate in eating, but we are under no legal obligation to be so; we ought to love our neighbors, but no law obliges us to love our neighbors. (1 B.L.D., 962). Justice. The constant and perpetual disposition to render to every man his due. (Justinian, Inst. b. 1, tit. 1; Co. 2d Inst. 56.). The conformity of our actions and our will to the law. (Teullier, Droit Civ. Fr. Tit. prel. n. 5.). Good Faith. An honest intention to abstain from taking any unconscientious advantage of another, even though the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious. (Wood v. Conrad, 2, S. D. 334, 50 M.W., 95.). Coverage of the law. The foregoing rule pervades the entire legal system, and renders it impossible that a person who suffers damage because another has violated some legal provision, should find himself without relief. (Report of the Code Commission, p. 39). It is a sound and just principle that where one wrongfully or negligently does an act which in its consequences is injurious to another, he is liable for the damage caused by such wrongful act. This rule applies to artificial, as well as to natural, persons. It is submitted that to warrant the recovery of damages in any case, there must be a right of action for a wrong inflicted by the defendant and damage resulting to the plaintiff therefrom. Wrong without damage, or damage without wrong, does not constitute a cause of action. (Civil Code of the Phils., Commentaries and Jurisprudence, Alba and Garcia, 1950 ed., p. 52). That is why, if the injury was self-inflicted, there can be no recovery of damages. It would be a case of damage without injury.

Art. 19

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Necessity for the law. It has been said that since law is the mode of regulating conduct by means of sanctions imposed by a politically organized society, and since law prescribes rather than describes, the codifiers, in formulating these new provisions have seen fit to indicate the range of allowable conduct among the citizens of the Philippines and they have done it in an imperative mode, form, and content. This imperative character it possesses by virtue of its sanctions, which are threats of consequences in case of disobedience. It is not, however, the normative aspect of this provision that gives it a unique character. It is the fact that the sanction or the punishment of these violations is applied exclusively by organized political government, for this draws the line of distinction between law on the one hand, and religion, morals, and customs, on the other. There can be no definiteness and certainty of the intention of these provisions unless they are so written, for after all, the Latin maxim lex scripta dura lex holds true, unlike moral precepts which, if not written into the law, however sublime and noble in purpose, are nevertheless shifting and fluid, lacking in precision, definiteness and pains and penalties in case of violation. (Civil Code of the Phils., Commentaries and Jurisprudence, Garcia and Alba, 1950 ed., pp. 5152). Standards of Human Conduct are set forth by law. In the exercise of a right and in the performance of an obligation, there are norms of conduct that a person must observe. It is not because a person invokes his rights that he can do anything, even to the prejudice and disadvantage of another. The same rule applies in case he performs his duties. Article 19 of the Civil Code, known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which must be observed not only in the exercise of ones rights but also in the performance of ones duties. These standards are: (1) to act with justice; (2) to give everyone his due; (3) to observe honesty and good faith. The law, therefore, recognizes the primordial limitation on all rights: that in their exercise, the norms of human conduct set forth in Article 19, New Civil Code must be observed. For, a right although by itself legal because it is recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which

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the wrongdoer must be held responsible. (Albenson Enterprises Corp., et al. vs. CA, et al., G.R. No. 88694, January 11, 1993). In this case of Albenson Enterprises Corp., petitioners contended that the civil case filed was one for malicious prosecution. They asserted that the absence of malice on their part absolved them from any liability. On the other hand, private respondent contended that he anchored the case on Articles 19, 20 and 21 of the Civil Code. The Supreme Court, however, said that in which way it was founded, the petitioners are not liable. It justified the holding by saying that: Article 19, known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which must be observed not only in the exercise of ones rights but also in the performance of ones duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty and good faith. The law, therefore, recognizes the primordial limitation on all rights: that in their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. Although the requirements of each provision is different, these three (3) articles are all related to each other. As the eminent Civilist Senator Arturo Tolentino puts it: With this article (Article 21), combined with Articles 19 and 20, the scope of our law on civil wrongs has been very greatly broadened; it has become much more supple and adaptable than the Anglo-American law on torts. It is now difficult to conceive of any malevolent exercise of a right which could not be checked by the application of these articles. (Tolentino, 1 Civil Code of the Philippines, 1974 ed.). There is, however, no hard and fast rule which can be applied to determine whether or not the principle of abuse of rights may be invoked. The question of whether or not the principle of abuse of rights has been violated, resulting in damages under Articles 20 and 21 or other applicable provision of law, depends on the circumstances

Art. 19

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of each case. (Globe Mackay Cable and Radio Corporation vs. Court of Appeals, 176 SCRA 778 [1989]). The elements of an abuse of right under Article 19 are the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. Article 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction. (Tolentino, supra, p. 71). Thus, anyone who, whether willfully or negligently, in the exercise of his legal right or duty, causes damage to another, shall indemnify his victim for injuries suffered thereby. Article 21 deals with acts contra bonus mores, and has the following elements: 1) There is an act which is legal; 2) but which is contrary to morals, good custom, public order, or public policy; 3) and it is done with intent to injure. Thus, under any of these three (3) provisions of law, an act which causes injury to another may be made the basis for an award of damages. There is a common element under Articles 19 and 21, and that is, the act must be intentional. However, Article 20 does not distinguish, the act may be done either willfully, or negligently. The trial court as well as the respondent appellate court mistakenly lumped these three (3) articles together, and cited the same as the bases for the award of damages in the civil complaint filed against petitioners, thus: With the foregoing legal provisions (Articles 19, 20, and 21) in focus, there is not much difficulty in ascertaining the means by which appellants first assigned error should be resolved, given the admitted fact that when there was an attempt to collect the amount of P2,575.00, the defendants were explicity warned that plaintiff Eugenio S. Baltao is not the Eugenio Baltao defendants had been dealing with. When the defendants nevertheless insisted and persisted in filing a case a criminal case no less against plaintiff, said defendants ran afoul of the legal provisions (Articles 19, 20, and 21 of the Civil Code) cited by the lower court and heretofore quoted. Assuming, arguendo, that all the three (3) articles, together and not independently of each one, could be val-

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idly made the bases for an award of damages based on the principle of abuse of right, under the circumstances, we see no cogent reason for such an award of damages to be made in favor of private respondent. Certainly, petitioners could not be said to have violated the aforestated principle of abuse of right. What prompted petitioners to file the case for violation of Batas Pambansa Bilang 22 against private respondent was their failure to collect the amount of P2,575.00 due on a bounced check which they honestly believed was issued to them by private respondent. Petitioners had conducted inquiries regarding the origin of the check, and yielded the following results: from the records of the Securities and Exchange Commission, it was discovered that the President of Guaranteed (the recipient of the unpaid mild steel plates), was one Eugenio S. Baltao; an inquiry with the Ministry of Trade and Industry revealed that E.L. Woodworks, against whose account the check was drawn, was registered in the name of one Eugenio S. Baltao. Case: A complaint was filed seeking to compel the bank to pay the value of checks issued to her by Thomson as it refused to pay the same despite repeated directives of the drawer to recognize the check he issued. The bank filed a motion to dismiss alleging that the complaint failed to state a cause of action under Section 189 of the Negotiable Instruments Law, a check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder unless and until it accepts or certifies it. Is the contention correct? Why? Held: No. The bank can be held liable for damages because it was not a suit on the value of the check itself, but for how it acted in relation to the claim for payment. The allegations in the complaint that the gross inaction of the bank on Thomsons instructions, as well as its evident failure to inform her of the reason are insouciance on its part. (Platinum Tours & Travel, Inc. vs. Panlilio, 411 SCRA 142 [2003]; Herrera vs. Bollos, 374 SCRA 107 [2002]).

Art. 19

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The complaint was anchored on Article 19, NCC. The law speaks of the fundamental principle of law and human conduct that a person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. It sets the standard which may be observed not only in the exercise of ones right but also in the performance of ones duties. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. But a right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. A person should be protected only when he acts in the legitimate exercise of his right, that is, when he acts with prudence and in good faith; but not when he acts with negligence or abuse. There is an abuse of right when it is exercised for the only purpose of prejudicing or injuring another. The exercise of a right must be in accordance with the purpose for which it was established, and must not be excessive or unduly harsh; there must be no intention to injure another. (HSBC vs. Catalan, G.R. No. 159590; HSBC International Trustee, Ltd. vs. Catalan, G.R. No. 159591, October 18, 2004). Case: There was a contract whereby Valenzona was hired as coach of the Alaska Basketball Team in the PBA for a period of two (2) years. Paragraph 3 of the contract provided that If at anytime during the contract, the Coach, in the sole opinion of the Corporation, fails to exhibit sufficient skill or competitive ability to coach the team, the Corporation may terminate this contract. During his stint as head coach, the team placed third in both Open and All Filipino PBA Conferences in 1988. He was later on served with notice that the management was terminating his services. But six (6) years thereafter, he filed a complaint for damages asking for payment of his compensation arising from the arbitrary and unilateral termination of his employment. The RTC dismissed the case for lack of cause of action, although he challenged paragraph 3 of the contract as lacking the element of mutuality. The RTC upheld the validity of the contract. On appeal, the CA reversed the decision holding that the complainant Valenzona was fully aware of entering into a bad bargain. Is paragraph 3 of the contract is violative of the principle of mutuality of contracts? Explain.

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Held: The assailed condition clearly transgressed the principle of mutuality of contracts hence, it is null and void. It leaves the determination of whether Valenzona failed to exhibit sufficient skill or competitive ability to coach Alaska team solely to the opinion of GF Equity. Whether Valenzona indeed failed to exhibit the required skill or competitive ability depended exclusively on the judgment of GF Equity. In other words, GF Equity was given an unbridled prerogative to pre-terminate the contract irrespective of the soundness, fairness or reasonableness, or even lack of basis of its opinion. To sustain the validity of the assailed paragraph would open the gate for arbitrarily and illegal dismissals, for void contractual stipulations would be used as justification therefor. Q Was there abuse of right in the pre-termination of the contract? Explain. Held: Yes. Since the pre-termination of the contract was anchored on an illegal ground, hence, contrary to law, and GF Equity negligently failed to provide legal basis for such pre-termination, e.g., that Valenzona breached the contract by failing to discharge his duties thereunder, GF Equity failed to exercise in a legitimate manner its right to pre-terminate the contract, thereby abusing the right of Valenzona to thus entitle him to damages under Article 19 in relation to Article 20 of the Civil Code the latter of which provides that every person who, contrary to law, willfully or negligently causes damages to another, shall indemnify the latter for the same. (GF Equity, Inc. vs. Arturo Valenzona, G.R. No. 156841, June 30, 2005). Exercise of right must be in good faith. One standard laid down by law in the exercise of ones right is good faith, for no one has a license to injure the rights of others, even on the pretext of exercising ones rights. Good faith can be defined as an honest intention to abstain from taking any unconscientious advantage of another, even though the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious. (Wood vs. Conrad, 2, S.D. 334, 50 M.W., 95).

Art. 19

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Case: Velayo, etc. vs. Shell Co. of the Phils., et al. L-7817, October 31, 1956 Facts: The CALI (Commercial Airlines, Inc.) knew it did not have sufficient assets to pay off its creditors who agreed that they would be contented with a pro rata division of the assets, including a C-54 plane, still in California. One of the creditors, the Shell Company, took advantage of the information and made a telegraphic assignment of its credit in favor of a sister Shell Company in the U.S., which then promptly attached the plane in California, thus depriving the other creditors of its value. Question: Can Shell Company in the Philippines be made liable to pay for damages to the other creditors? Held: Yes, because it did not show good faith and honesty, invoking Article 19 of the New Civil Code, which provides that, Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. For every right, there is a right to be respected. When one says that he has a right to a thing he means that it is right that he should have that thing. Under this rule of law, or rather under this rule of right, a man in the use of his right over the thing he owns or possesses should so act as not to do injustice to others and should exercise his right with due respect to others rights observing at the same time honesty and keeping faith with his fellowmen. In the performance of this mans duties it should not be overlooked that in this complex world of affairs no force acts together apart from other forces because reaction and interaction are in constant operation. That being so and considering that duties rest mainly upon expediency while obligations poise upon justice, it follows that duties being partly related to public policy and partly related to private right should be governed both by the law of conscience and by the law of expedience. This simply means that strict legalism is

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not alone the law; for there is beside it or above it the law of justice and equity. One, therefore, should, in the performance of his duties, strive to bring a measure of humanity into the law. (Civil Code of the Phils., Commentaries and Jurisprudence, Alba and Garcia, 1950 ed., pp. 50-51). Principle of abuse of right. It is beyond denial that a person has the right to exercise his rights, but in so doing, he must be mindful of the rights of other people. Hence, if he exercises his rights and causes damage to another, he can be liable for damages. An example is the right of Meralco to cut electric connections of people who do not pay their electric bills. In Meralco vs. CA, L-39019, January 22, 1988, the Supreme Court observed that Meralco cut the electric connections of one customer without complying with the 48-hour notice before doing so. The Supreme Court, in holding the electric company liable for damages, said that it must give a 48-hour notice to its customers before cutting the latters electric supply even if they failed to pay their bills. Electricity becomes a necessity to most people, justifying the exercise by the State of its regulatory powers over the business of supplying electric service to the public. Before disconnecting service to the delinquent customers, prior written notice of at least 48 hours is required under PSC regulations. Failure to give such notice amounts to a tort. The Supreme Court further said that disconnection of electricity without prior notice constitutes breach of contract. It was said that: x x x petitioners act in disconnecting respondent Ongsips gas service without prior notice constitutes breach of contract amounting to an independent tort. The prematurity of the action is indicative of an intent to cause additional mental and moral suffering to private respondent. This is a clear violation of Article 21 of the Civil Code which provides that any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages. This is reiterated by paragraph 10 of Article 2219 of the Code. Moreover, the award of moral damages is sanctioned by Article 2220 which provides that willfull injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule

Art. 19

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applies to breaches of contract where the defendant acted fraudulently or in bad faith. (Manila Gas Corp. vs. CA, 100 SCRA 602). Whether default in the payment of electric bills is a ground to defeat or nullify the claim for damages in case of disconnection of electric supply, the Supreme Court said: Likewise, we find no merit in petitioners contention that being in arrears in the payment of their bills, the private respondents are not entitled to moral damages under the doctrine that he who comes to court in demand of equity, must come with clean hands. We rejected this argument in the Manila Gas Corporation case, supra, wherein we held that respondents default in the payment of his bills cannot be utilized by petitioner to defeat or nullify the claim for damages. At most, this circumstance can be considered as a mitigating factor in ascertaining the amount of damages to which respondent x x x is entitled. Requirements for liability. To be liable under the law, the following requisites must be met: (1) (2) (3) (4) the party claiming damages must have sustained the loss; the party against whom they are claimed must be chargeable or guilty of the wrong complained of; the loss must be the natural and proximate consequence of the wrong; the wrong complained of must be contrary to law and the act or omission causing the damage should either be willful or a direct or proximate result of negligence.

In the absence of compliance with the above requirements, it would result in no right of recovery for damages, or what is known as damage without injury. In SEA Com. Co., Inc. vs. CA, et al., G.R. No. 122823, November 25, 1999, 116 SCAD 198 (J., Reyes), SEACOM appointed JILL as the exclusive dealer of its farm machineries in Iloilo and Capiz. During the existence of the exclusive dealership agreement, it sold 24 units of machineries to a customer in Iloilo. Is it liable to JILL? State the basis of its liability. This question arose because the latter sued the former for damages.

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The Supreme Court ruled in the affirmative because SEA Commercial Corporation, Inc., abused its right. Under Art. 19, NCC, every person must, in the exercise of his rights and in the performance of his obligations, act with justice, give everyone his due and observe honesty and good faith. When SEACOM directly dealt with a customer in Iloilo despite the exclusive dealership agreement, it acted in bad faith, thus, causing damage to JILL. SEACOM may not exercise its right unjustly, or in a manner that is not in keeping with honesty or good faith, as what it did, otherwise, it opens itself to liability for abuse of right. Elements of abuse of right. The elements of right under Art. 19 are the following: (1) the existence of a legal right or duty; (2) which is exercised in bad faith, and (3) for the sole intent of prejudicing or injuring another. Article 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction; while Article 21 deals with acts contra bonus mores, and has the following elements: (1) there is an act which is legal; (2) but which is contrary to morals, good custom, public order, or public policy; and (3) and it is done with intent to injure. Verily then, malice or bad faith is at the core of Articles 19, 20 and 21. Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity. Such must be substantiated by evidence. In another case, however, a party was exonerated from liability as there was no adequate proof it was inspired by malice or bad faith. It was honestly convinced of the merits of its cause after it had undergone serious negotiations culminating in its formal submission of a draft contract. Settled is the rule that the adverse result of an action does not per se make the action wrongful and subject the actor to damages, for the law could not have meant to impose a penalty on the right to litigate. If damages result from a persons exercise of rights, it is damnum absque injuria. (ABS-CBN vs. Republic Broadcasting Corporation, et al., G.R. No. 128690, January 21, 1999, 102 SCAD 459). Abuse of right; test. In Barons Marketing Corp. vs. CA, et al., G.R. No. 126486, February 9, 1998, 91 SCAD 509, the petitioner and private respon-

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dent had business transactions. When the obligation became due and demandable, the creditor-plaintiff demanded full payment, but the debtor offered to pay on installment basis which the creditor refused to accept. In his action for damages on the ground of abuse of right, the debtor contended that the creditor abused its right when it refused to accept the offer to pay on installment. Whether there is abuse of right or not. Held: No, because the creditors right to institute action for collection and claim full payment is beyond cavil. (Melendrez vs. Lavarias, 9 SCRA 548). In fact, the creditor cannot be compelled partially to receive the prestation in which the obligation consists unless there is an express stipulation to that effect. Neither may the debtor be required to make partial payment. (Art. 1248, NCC). In short, prestation must be performed in one act, not in part. Article 19 of the Civil Code prescribes a primordial limitation on all rights by setting certain standards that must be observed in the exercise thereof. (Globe Mackay Cable and Radio Corp. vs. CA, 176 SCRA 778). There is no abuse of right if a creditor refuses to accept partial payment. To constitute an abuse of right, the defendant must act with bad faith to prejudice the plaintiff. Citing Tolentino, the Supreme Court said: Modern jurisprudence does not permit acts which, although not unlawful, are anti-social. There is undoubtedly an abuse of right when it is exercised for the only purpose of prejudicing or injuring another. When the objective of the actor is illegitimate, the illicit act cannot be concealed under the guise of exercising a right. The principle does not permit acts which, without utility or legitimate purpose cause damage to another, because they violate the concept of social solidarity which considers law as rational and just. Hence, every abnormal exercise of a right, contrary to its socio-economic purpose, is an abuse that will give rise to liability. The exercise of a right must be in accordance with the purpose for which it was established, and must not be with the intention to injure another. Ultimately, however, and in practice, courts, in the sound exercise of their discretion, will have to determine all the facts and circumstances when the exercise of a right is unjust, or when there has been an abuse of right.

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The question, therefore, is whether the creditor intended to prejudice or injure the debtor when it rejected his offer and filed the action for collection. No. It is an elementary rule in this jurisdiction that good faith is presumed and that the burden of proving bad faith rests upon the party alleging the same. (Ford Phils. vs. CA, G.R. No. 99039, February 3, 1997, 78 SCAD 689). Since there was no abuse of right, the creditor cannot be liable for damages. Public officer may be liable for his wrongdoing under Article 19. The occupancy of a public office is not a license or a justification to do wrong. For in fact, a public office is a public trust. Hence, it has been said in Chavez vs. Sandiganbayan that the occupancy of a high public office cannot be used as a cloak against wrongdoing; hence, the Supreme Court said that a public officer can be sued in his individual capacity for his wrongdoing. In Shauf vs. CA, G.R. No. 90314, November 27, 1990, it was said that the doctrine of immunity from suit will not apply and may not be invoked where the public official is sued in his private and personal capacity as an ordinary citizen. A public official may be liable in his personal private capacity for whatever damages he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction. In Meneses vs. CA, et al., 62 SCAD 660, 246 SCRA 162 (July 14, 1995), a public officer was held liable for damages in his private capacity. Justifying the ruling, the Supreme Court said that a public official is by law not immune from damages in his personal capacity for acts done in bad faith. (Vidad vs. RTC of Negros Oriental, Branch 42, 45 SCAD 371, 227 SCRA 271). Civil liability despite acquittal; bad faith of defendant. In David Llorente vs. Sandiganbayan, et al., G.R. No. 85464, October 3, 1991, Atty. Llorente disallowed the clearance of one applicant, but approved the clearances of two (2) others, although they were equally situated. He was sued for violation of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019, Sec. 3[e]), for having wilfully and unlawfully refused to issue clearance to complainant Herminigildo Curio, resulting in his deprivation to receive his gratuity benefits, he, having been forced to resign, and secure employ-

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ment with other offices to his damage and prejudice and that of public service. He was acquitted by the SB on the ground that there was lack of evidence of bad faith on his part, but he was guilty of abuse of right and as a public officer, he was liable for damages suffered by the aggrieved party (Art. 27), hence, this petition. Held: One of the elements of Sec. 3(e) of R.A. No. 3019 is that the officer must have acted with evident bad faith. Petitioner did not really act with evident bad faith because he was merely acting within the bounds of the law in refusing to issue clearance to Curio although the practice was that the clearance was approved, and then the amount of the unsettled obligation was deducted from the gratuity benefits of the employee. But he acted with bad faith, for which he must be held liable for damages. He had no valid reason to go legal all of a sudden with respect to Mr. Curio, since he had cleared three employees who, as the Sandiganbayan found, were all similarly circumstanced in that they all had pending obligations when, their clearances were filed for consideration, warranting similar official action. He unjustly discriminated against Mr. Curio. It is the essence of Article 19 of the Civil Code, under which the petitioner was made to pay damages, together with Article 27, that the performance of duty be done with justice and good faith. In the case of Velayo vs. Shell Co. of the Philippines, 120 Phil. 187, the defendant was held liable under Article 19 for disposing of its property a perfectly legal act in order to escape the reach of a creditor. In two fairly more recent cases, Sevilla vs. Court of Appeals (160 SCRA 171) and Valenzuela vs. Court of Appeals (191 SCRA 1), it was held that a principal is liable under Article 19 in terminating the agency again, a legal act when terminating the agency would deprive the agent of his legitimate business. Case: Globe Mackay Cable & Radio Corp. vs. CA, et al. G.R. No. 81262, August 25, 1989 Facts: Restituto Tobias was employed by petitioner as purchasing agent and administrative assistant to the engineering operations manager. Fictitious purchases were discovered and the same were attributed

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to Tobias. Hendry, the Executive Vice-President and General Manager, confronted him by stating that he was the number one suspect and ordered him to take a one week leave, not to communicate with the office, to leave his table drawers open, and to leave the office keys. When he returned to work, Hendry again went to him and called him a crook and a swindler. He was ordered to take a lie detector test. He was also ordered to submit specimen signatures for examination by the police. Examinations were conducted, but they were proven to be negative. When a private investigator was hired, he reported that Tobias was guilty but recommended further investigation. He was subsequently suspended. Inspite of the reports, Tobias was sued for estafa thru falsification of commercial documents, only to be amended to estafa. All the six (6) criminal cases were dismissed. When he was terminated, he applied for a job with Retelco, but Hendry without Retelco asking for it, wrote a letter to the latter stating that Tobias was dismissed by Globe Mackay due to dishonesty. Tobias filed a case of damages anchored on alleged unlawful, malicious, oppressive and abusive acts of petitioners. The lower court rendered judgment in his favor. The Court of Appeals affirmed the judgment in toto, hence, this appeal. Petitioners contended that they cannot be liable for damages in the lawful exercise of their right to dismiss the respondent. Respondent contended that because of the abusive manner in dismissing him and the inhuman treatment he got from them, they are liable for damages. Rule on the contentions. Held: Under Article 19, NCC, every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. This article, known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which must be observed not only in the exercise of ones rights but also in the performance of ones duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty and good faith. The law, therefore, recognizes a primordial limitation on all rights; that in their exercise the norms of human conduct set forth in Article 19 must be observed. A right though by itself legal because recognized or granted by law as such, may nevertheless become the

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source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. While Article 19 of the New Civil Code does not provide for the remedy of an aggrieved party, an action may be based on Article 20 which provides that every person who contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. So that even if the dismissal of Tobias was an exercise of Globes right, Article 21, New Civil Code also provides for a remedy. It provides: Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. Firmness and the resolve to uncover the truth would also be expected from such employer. But the high-handed treatment accorded Tobias by petitioners was certainly uncalled for. The imputation of guilt without basis and the pattern of harassment transgressed the standards of human conduct set forth in Article 19, New Civil Code. The right of the employer to dismiss an employee should not be confused with the manner in which the right is exercised and the effects flowing therefrom. If the dismissal is done abusively, then the employer is liable for damages to the employee. (Quisaba vs. Sta. Ines-Melale Veneer and Plywood, Inc., G.R. No. L-38088, August 30, 1974, 58 SCRA 771). The circumstances in this case clearly indicate that petitioners failed to exercise in a legitimate manner their right to dismiss Tobias, hence, they are liable for damages under Article 21, New Civil Code. Calling Tobias a crook and a swindler as well as saying You Filipinos cannot be trusted; the sending of a letter to Retelco stating that Tobias was dismissed due to dishonesty were tortious acts committed by Hendry and Globe Mackay. They are therefore liable under Article 2176, New Civil Code. Abuse of Right. If a tenant has failed to pay his rentals, the landlord cannot padlock the premises because nobody should take the law into his

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own hands. Every person must, in the exercise of his right, act with justice, give everyone his due and observe honesty and good faith. (Article 19, New Civil Code). This is actually an abuse of right which the law abhors. Hence, in Velayo vs. Shell, 100 Phil. 186, the Supreme Court said that if a group of creditors agreed to share the proceeds of the sale of a property of an insolvent debtor, but upon knowing the identity of such property, a creditor filed a suit and attached the same, he is liable pursuant to Article 19 of the New Civil Code. He did not exercise his right in good faith. It has been held that if an employer retrenches his employees and later on hires other persons to perform the same duties as those retrenched, he can be held liable for damages. Retrenchment to prevent losses is concededly a just cause for termination of employment and the decision to resort to such move or not is a management prerogative. However, a person must, in the exercise of his rights and performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. So that if the termination of employees was done in bad faith, as when, after the termination of employees, another set of employees are hired, the employer can be held liable for damages under Article 19, New Civil Code. (AHS Phil. Employees Union vs. NLRC, et al., G.R. No. L-73721, March 30, 1987). Case: Relosa, et al. vs. Pellosis, et al. G.R. No. 138964, August 9, 2001 Facts: A lease contract was entered into where the lessee has been in possession of the premises for more than 20 years. The lessee constructed a house on the land leased. The lessor sold the land to another who after obtaining a title, filed a petition for condemnation of the house. After due hearing, the Office of the Building Official issued a resolution ordering the demolition of the house of the lessee. She was served with a copy of the resolution on December 7, 1989 and the following day, the new owner hired workers to commence the demolition. It was stopped due to the intervention of police officers, but during the pendency of the appeal, she again hired workers to demolish the house. An action for damages was filed but it was dismissed. The CA reversed the order and made the defendant liable

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for damages. On appeal, it was contended that she cannot be made liable because the order of condemnation was eventually upheld by the Department of Public Works where the house was considered dangerous and could be abated to avoid danger to the public. In holding the defendant liable for damages, the Supreme Court Held: The defendant is liable for damages because she abused her right. Under the law, every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. (Article 19, NCC). This provision in our law is not just a declaration of principle for it can in itself constitute, when unduly ignored or violated, a valid source of a cause of action or defense. It is true that there was a condemnation order which was eventually affirmed by the Department of Public Works, but five (5) days after the defendant received a copy of the order which has not yet become final and executory, she caused the precipitate demolition of the plaintiff s house. The fact that the order was eventually affirmed by the Department is of no moment. The act of obtaining an order of demolition is not condemnable but implementing it unmindful of the plaintiff s right to contest is utterly indefensible. A right is a power, privilege, or immunity guaranteed under a constitution, statute or decisional law, or recognized as a result of long usage (Blacks Law Dictionary, 6th Ed., p. 1324), constitutive of a legally enforceable claim of one person against another. The defendant might verily be the owner of the land, with the right to enjoy (Article 428, NCC), and to exclude any person from the enjoyment and disposal thereof (Article 429, NCC), but the exercise of these rights is not without limitations. The abuse of rights rule established in Article 19 of the Civil Code requires every person to act with justice, to give everyone his due, and to observe honesty and good faith. (Albenson Enterprises Corporation vs. CA, 217 SCRA 16). When a right is exercised in a manner which discards these norms resulting in damage to another, a legal wrong is committed for which the actor can be held accountable. In this instance, the issue is not so much about the existence of the right or validity of the order of demolition as the question of whether or not petitioners have acted in conformity with, and not in disregard of, the standards set by Article 19 of the Civil Code.

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Lawyer was held liable for abuse of right. Case: Amonoy vs. Sps. Jose Gutierrez and Angela Fornilda G.R. No. 140420, February 15, 2001 Facts: There was a special proceeding for the settlement of the estate of the deceased Julio Cantolos. The petitioner was the counsel for the respondents. His attorneys fees were secured by a mortgage over two lots adjudicated to the clients. After the court declared the proceedings closed, the attorneys fees were not paid, hence, there was foreclosure of the mortgage. The properties were sold at public auction where petitioner was the highest bidder. Respondents filed a suit to annul the judgment but it was dismissed, hence, a writ of possession over the lots was issued and upon motion, orders of demolition of the improvements were issued. In the meantime, the Supreme Court in Fornilda vs. Br. 164, RTC, G.R. No. 72306, decided nullifying the orders of demolition, but by that time, the respondents house has already been destroyed, hence, the respondents filed a suit for damages against petitioner which was dismissed by the RTC but which was reversed by the CA holding him liable for damages. Petitioner contended on appeal that he is not liable because he was merely acting in accordance with the Writ of Demolition issued by the RTC. In short, he invoked the principle of damnum absque injuria. Held: The petitioner is liable for damages, because there was an abuse of right. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith. Although the acts of petitioner may have been legally justified at the outset, their continuation after the issuance of the TRO amounted to an insidious abuse of his right. Indubitably, his actions were tainted with bad faith. Had he not insisted on completing the demolition, respondents would not have suffered the loss that engendered the suit before the RTC. Verily, his act constituted not only an abuse of a right, but an invalid exercise of a right that had been suspended when he received the TRO from the Court on June 4, 1986.

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By then, he was no longer entitled to proceed with the demolition, hence, he is liable for damages. The exercise of a right ends when the right disappears and it disappears when it is abused, especially to the prejudice of others. The mask of a right without the spirit of justice which gives it life, is repugnant to the modern concept of social law. It cannot be said that a person exercises a right when he unnecessarily prejudices another. Over and above the specific precepts of positive law are the supreme norms of justice; and he who violates them violates the law. For this reason, it is not permissible to abuse ones rights to prejudice others. (Amonoy vs. Sps. Jose Gutierrez and Angela Fornilda, G.R. No. 140421, February 15, 2001). Petitioner cannot invoke the principle of damnum absque injuria Petitioner cannot invoke damnum absque injuria, a principle premised on the valid exercise of a right. (Globe Mackay Cable and Radio Corp. vs. CA, 176 SCRA 778). Anything less or beyond such exercise will not give rise to the legal protection that the principle accords. And when damage or prejudice to another is occasioned thereby, liability cannot be obscured, much less abated. Article 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. The principle in Article 20 of the New Civil Code is founded on the basic rule that every person who is criminally liable shall also be civilly liable. (Art. 100, RPC). This is true whether the act is intentional or unintentional as when a person kills another or when a person is hit by a vehicle driven by another without the intention of hitting the victim. It is implemented specifically by Article 2176 of the Civil Code which says that whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. In Banal vs. Tadeo, Jr., G.R. Nos. 78911-25, December 11, 1987, the Supreme Court held that regardless of whether or not a special law so provides, indemnification of the offended party may be on account of the damage, loss or injury directly suffered as a consequence of the wrongful act of another. The indemnity which a person is sentenced to pay forms an integral part of the penalty imposed by law for the commission of the crime.

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Case: Occena vs. Icamina G.R. No. 82146, January 22, 1990 Facts: Respondent was found guilty of slight oral defamation and sentenced to a fine of P50.00, with subsidiary imprisonment in case of insolvency, but no civil liability arising from the felonious act of the accused was adjudged. Held: This is erroneous. As a general rule, a person who is found to be criminally liable offends two (2) entities: the state or society in which he lives and the individual. Case: Banal vs. Tadeo, Jr. 156 SCRA 325 Facts: Fifteen separate informations for violation of B.P. Blg. 22 were filed against respondent Rosario Claudio, to which she pleaded not guilty upon arraignment. The respondent Court issued an order rejecting the appearance of Atty. Bustos as private prosecutor on the ground that the charge is for violation of B.P. Blg. 22 which does not provide for any civil liability or indemnity and hence, it is not a crime against property but public order. The respondent argued that it is the state and the public that are the principal complainants and, therefore, no civil indemnity is provided for by B.P. Blg. 22 for which a private party or prosecutor may intervene. On the other hand, the petitioner, relying on the legal axiom that Every man criminally liable is also civilly liable, contended that indemnity may be recovered from the offender regardless of whether or not B.P. Blg. 22 so provides. Held: Every person who contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.

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What gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, done intentionally or negligently. Regardless, therefore, of whether or not a special law so provides, indemnification of the offended party may be had on account of the damage, or loss or injury directly suffered. In the aforecited case of Banal vs. Tadeo, Jr., the Supreme Court cited the basis of civil liability arising from crime and said: Generally, the basis of civil liability arising from crime is the fundamental postulate of our law that Every man criminally liable is also civilly liable. (Art. 100, The Revised Penal Code). Underlying this legal principle is the traditional theory that when a person commits a crime he offends two entities namely: (1) the society in which he lives in or the political entity called the State whose law he had violated; and (2) the individual member of that society whose person, right, honor, chastity or property was actually or directly injured or damaged by the same punishable act or omission. However, this rather broad and general provision is among the most complex and controversial topics in criminal procedure. It can be misleading in its implications especially where the same act or omission may be treated as a crime in one instance and as a tort in another or where the law allows a separate civil action to proceed independently of the course of the criminal prosecution with which it is intimately intertwined. Many legal scholars treat as a misconception or fallacy the generally accepted notion that the civil liability actually arises from the crime when, in the ultimate analysis, it does not. While an act or omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Viewing things pragmatically, we can readily see that what gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, done intentionally or negligently, whether or not the same be punishable by law. In other words, criminal liability will give rise to civil liability only if the same felonious act or omission results in damage or injury to another and is the direct and proximate cause

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thereof. Damage or injury to another is evidently the foundation of a civil action. Such is not the case in criminal actions for, to be criminally liable, it is enough that the act or omission complained of is punishable, regardless of whether or not a special law so provides, indemnification of the offended party may be had on account of the damage, loss or injury directly suffered as a consequence of the wrongful act of another. The indemnity which a person is sentenced to pay forms an integral part of the penalty imposed by law for the commission of a crime. (Quemuel vs. Court of Appeals, 22 SCRA 44, citing Bagtas vs. Director of Prisons, 84 Phil. 692). Every crime gives rise to a penal or criminal action for the punishment of the guilty party, and also to civil action for the restitution of the thing, repair of the damage, and indemnification for the losses. The private party who suffered the offenses committed cannot be disregarded. This is so because of the private interest of the offended party, hence, the Supreme Court explained that: Indeed, one cannot disregard the private party in the case at bar who suffered the offenses committed against her. Not only the State but the petitioner too is entitled to relief as a member of the public which the law seeks to protect. She was assured that the checks were good when she parted with money, property or services. She suffered with the State when the checks bounced. In Lozano vs. Hon. Martinez (G.R. No. 63419, December 18, 1986) and the cases consolidated therewith, we held that: The effects of a worthless check transcend the private interests of the parties directly involved in the transaction and touch the interests of the community at large. Yet, we too recognized the wrong done to the private party defrauded when we stated therein that the mischief it creates is not only a wrong to the payee or the holder, but also an injury to the public. Civil liability to the offended private party cannot thus be denied. The payee of the check is entitled to receive the payment of money for which the worthless check was issued. Having been caused the damage, she is entitled to recompense.

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Case: University of the East vs. Jader G.R. No. 132344, February 7, 2000 Facts: A suit for damages was filed against UE when he was not able to take the 1988 bar examinations arising from the schools negligence. He was included in the list of candidates for graduation even before verifying the result of his removal examination. He was informed later that he failed. The school contended that it never led him to believe that he completed the requirements for a Bachelor of Laws degree when his name was included in the tentative list of graduating students. The trial court held the school liable for damages. It was affirmed with modification by the CA. On appeal, the school contended that it had no liability considering that the students negligence in failing to verify from his professor the result of his removal examination was the proximate and immediate cause of the alleged damages. On appeal the Supreme Court Held: The appeal is without merit. When a student is enrolled in any educational or learning institution, a contract of education is entered into between said institution and the student. The professors, teachers or instructors hired by the school are considered merely as agents and administrators tasked to perform the schools commitment under the contract. Since the contracting parties are the school and the student, the latter is not duty-bound to deal with the formers agents, such as the professors with respect to the status or result of his grades, although nothing prevents either professors or students from sharing with each other such information. The Court takes judicial notice of the traditional practice in educational institutions wherein the professor directly furnishes his/her students their grades. It is the contractual obligation of the school to timely inform and furnish sufficient notice and information to each and every student as to whether he or she had already complied with all the requirements for the conferment of a degree or whether they would be included among those who will graduate. Although commencement exercises are but a formal ceremony, it nonetheless is not an ordinary occasion, since such ceremony is the educational institutions way of announcing to the whole

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world that the students included in the list of those who will be conferred a degree during baccalaureate ceremony have satisfied all the requirements for such degree. Prior or subsequent to the ceremony, the school had the obligation to promptly inform the student of any problem involving the latters grades and performance and, also, most importantly, of the procedures to remedy the same. The school, in belatedly informing the student of the result of the removal examination, particularly at a time when he had already commenced preparing for the bar exams, cannot be said to have acted in good faith. Absence of good faith must be sufficiently established for a successful prosecution by the aggrieved party in a suit for abuse of right under Article 19 of the Civil Code. Good faith connotes an honest intention to abstain from taking undue advantage of another, even though the forms and technicalities of the law, together with the absence of all information or belief of facts, would render the transaction unconscientious. It is the school that has access to those information and it is only the school that can compel its professors to act and comply with its rules, regulations and policies with respect to the computation and the prompt submission of grades. Students do not exercise control, much less influence, over the way an educational institution should run its affairs, particularly in disciplining its professors and teachers and ensuring their compliance with the schools rules and orders. Being the party that hired them, it is the school that exercises exclusive control over the professors with respect to the submission of reports involving the students standing. Exclusive control means that no other person or entity had control over the instrumentality which caused the damage or injury. The college dean is the senior officer responsible for the operation of an academic program, enforcement of rules and regulations, and the supervision of faculty and student services. He must see to it that his own professors and teachers, regardless of their status or position outside of the university, must comply with the rules set by the latter. The negligent act of a professor who fails to observe the rules of the school, for instance by not promptly submitting a students grade, is not only imputable to the professor but is an act of the school, being his employer. Considering further, that the institution of learning involved herein is a university which is engaged in legal education, it should have practiced what it inculcates in its students, more specifically the principle of good dealings enshrined in Articles 19 and 20 of the Civil Code which state:

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Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. Article 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to provide specifically in statutory law. In civilized society, men must be able to assume that others will do them no intended injury that others will commit no internal aggressions upon them; that their fellowmen, when they act affirmatively will do so with due care which the ordinary understanding and moral sense of the community exacts and that those with whom they deal in the general course of society will act in good faith. The ultimate thing in the theory of liability is justifiable reliance under conditions of civilized society. Schools and professors cannot just take students for granted and be indifferent to them, for without the latter, the former are useless. Educational institutions are duty-bound to inform the students of their academic status and not wait for the latter to inquire from the former. The conscious indifference of a person to the rights or welfare of the person/persons who may be affected by his act or omission can support a claim for damages. Want of care to the conscious disregard of civil obligations coupled with a conscious knowledge of the cause naturally calculated to produce them would make the erring party liable. Petitioner ought to have known that time was of the essence in the performance of its obligations to inform respondent of his grade. It cannot feign ignorance that respondent will not prepare himself for the bar exams since that is precisely the immediate concern after graduation of an LL.B. graduate. It failed to act seasonably. Petitioner cannot just give out its students grades at any time because a student has to comply with certain deadlines set by the Supreme Court on the submission of requirements for taking the bar. Petitioners liability arose from its failure to promptly inform respondent and in misleading the latter into believing that he had satisfied all requirements for the course. Petitioner cannot pass on its blame to the professors to justify its own negligence that led to the delayed relay of information to respondent. When one of two innocent parties must suffer, he through

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whose agency the loss occurred must bear it. The modern tendency is to grant indemnity for damages in cases where there is abuse of right, even when the act is not illicit. If mere fault or negligence in ones acts can make him liable for damages for injury caused thereby, with more reason should abuse or bad faith make him liable. A person should be protected only when he acts in the legitimate exercise of his right, that is, when he acts with prudence and in good faith, but not when he acts with negligence or abuse. Role of the Student. However, while petitioner was guilty of negligence and thus liable to respondent for the latters actual damages, respondent should not have been awarded moral damages. The respondent did not suffer shock, trauma and pain when he was informed that he could not graduate and will not be allowed to take the bar examinations. At the very least, it behooved on respondent to verify for himself whether he has completed all necessary requirements to be eligible for the bar examinations. As senior law student, respondent should have been responsible enough to ensure that all his affairs, specifically those pertaining to his academic achievement, are in order. Given these considerations, respondent could not have suffered untold embarrassment in attending the graduation rites, enrolling in the bar review classes and not being able to take the bar exams. If respondent was indeed humiliated by his failure to take the bar, he brought this upon himself by not verifying if he has satisfied all the requirements including his school records, before preparing himself for the bar examinations does not only entail a mental preparation on the subjects thereof; there are also prerequisites or documentation and submission of requirements which the prospective examinee must meet. When Meralco may cut electric connection. Case: Sps. Quisumbing vs. Meralco G.R. No. 142943, April 3, 2002 Facts: An action for damages was filed by the plaintiffs alleging that defendant acted capriciously and in a malevolent manner in discon-

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necting their power supply which was done without due process and without due regard for their rights, feelings, peace of mind, social and business reputation. On the other hand, it was shown by defendant that there was an inspection of their meter with the consent of the owners and the inspection was witnessed by their secretary. It was found to be tampered, hence, it was brought to the laboratory for examination after it was detached. It was found out that it was tampered but it was reconnected later. Hence, they were asked to pay P178,875.01 representing the differential billing. The RTC held that the plaintiffs should have been given time to dispute the alleged tampering and held the defendant liable. The CA overturned the RTC decision holding that the defendant acted in good faith when it disconnected the electric service. Before the Supreme Court, the basic issue raised was: Whether Meralco observed the requisites of law when it disconnected the electrical supply of the plaintiffs. Held: No. Under the law, the Manila Electric Company (Meralco) may immediately disconnect electric service on the ground of alleged meter tampering, but only if the discovery of the cause is personally witnessed and attested to by an officer of the law or by a duly authorized representative of the Energy Regulatory Board. If there is no government representative, the prima facie authority to disconnect granted to Meralco by R.A. 7832 cannot apply. Meralco cannot find solace in the fact that petitioners secretary was present at the time the inspection was made. The law clearly states that for the prima facie evidence to apply, the discovery must be personally witnessed and attested to by an officer of the law or a duly authorized representative of the Energy Regulatory Board (ERB). Had the law intended the presence of the owner or his/her representative to suffice, then it should have said so. Embedded in our jurisprudence is the rule that courts may not construe a statute that is free from doubt. Where the law is clear and unambiguous, it must be taken to mean exactly what it says, and courts have no choice but to see to it that the mandate is obeyed. (Resins, Inc. vs. Auditor General, 25 SCRA 754). The presence of government agents who may authorize immediate disconnection goes into the essence of due process. Meralco cannot be the prosecutor and judge in imposing the penalty of dis-

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connection due to alleged meter tampering. That would not sit well in a democratic society. After all Meralco is a monopoly that derives its power from the government. Clothing it with unilateral authority to disconnect would be equivalent to giving it a license to tyrannize its helpless customers. Meralco cannot rely on the contractual right to disconnect if there is non-payment of bills. Meralco cannot rely on its contractual right to disconnect, which has requisites before disconnection may be made. An adjusted bill shall be prepared, and only upon failure to pay may the company disconnect or discontinue service. This is also true in regard to the provisions of Revised Order No. 1 of the former Public Service Commission which requires a 48-hour written notice before a disconnection may be justified. There must be compliance with these rules. Liability even in case of acquittal. A person who committed an offense may be liable criminally and civilly. This is so because of the twin responsibilities of an accused. However, if he is acquitted and the acquittal is beyond reasonable doubt, he can still be held civilly liable. The principle is based on Article 100 of the Revised Penal Code which states that, every person criminally liable for a felony is also civilly liable. The rule, however, is not absolute. While civil liability accompanies criminal liability, generally, by express provision of the penal law there may be civil liability incurred by the performance of a wrongful act even when the perpetrator is exempt from criminal punishment, like those governed by the Revised Penal Code. (U.S. vs. Baggay, 20 Phil. 142). Those governed by Article 332 of the Revised Penal Code have no criminal liability but they may be civilly liable. There are also offenses, which by their very nature, civil liability does not result or attach by their commission like the mala prohibita cases, examples of which are illegal possession of firearms, ammunitions and explosives; crimes against national security like treason, violation of neutrality, rebellion; and crimes against public order like evasion of service of sentence. The liability of an accused even in case of acquittal is justified by the fact that aside from crimes, there are other sources of obligations like quasi-delicts, contracts, law and quasi-contracts. (Art. 1157, New Civil Code). Furthermore, there is a difference between the quantum of evidence in proving the criminal liability of an accused,

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that is proof beyond reasonable doubt as distinguished from the mere preponderance of evidence in proving the civil liability of the defendant. The evidence presented might have been insufficient to prove the guilt of the accused, but it may be preponderant enough to establish the civil liability of the defendant. Case: Castro, et al. vs. Mendoza, et al. 44 SCAD 995, 226 SCRA 611 Facts: Pio Castro purchased construction materials from Victor Felipe on several occasions. Deliveries were made, but there were no payments each time deliveries were made. Demands were made for the payment until Haniel Castro, son of Pio, issued seven (7) checks in payment of such purchases. The checks bounced when presented for payment but despite demands, the Castros did not pay, hence, the filing of an estafa case against the Castros. The accused were convicted, hence, they appealed, contending that the factual settings gave rise to a civil, not criminal liability. Held: The contention of the accused is correct. Article 315, paragraph 2(d) of the Revised Penal Code, as amended by Republic Act No. 4885, for which the petitioners have been charged and convicted, penalizes estafa when committed, among other things: 2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud: xxx xxx xxx

(d) By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. x x x. The essential requirements of the above offense are that: (1) a check is drawn or postdated in payment of an obligation contracted at the time the check was issued; (2) there are no funds sufficient to cover the check; and (3) the payee sustains damage thereby.

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In People vs. Sabio, et al., G.R. No. L-45490; Tan Tao Liap vs. Court of Appeals, G.R. No. L-45711; and Lagua vs. Cusi, Jr., G.R. No. L-42971, 86 SCRA 568 (1978), jointly decided by this Court en banc, reiterated in People vs. Tugbang, 196 SCRA 341 (1991), we held: x x x (W)hat is significant to note is that the time or occasion for the commission of the false pretense or fraudulent act has not at all been changed by the amendment (R.A. No. 4885). The false pretense or fraudulent act must be executed prior to or simultaneously with the commission of the fraud. Thus, under Article 315, paragraph 2(d) of the Revised Penal Code, as amended by Republic Act No. 4885, the following are the elements of estafa: (1) postdating or issuance of a check in payment of an obligation contracted at the time the check was issued; (2) lack or insufficiency of funds to cover the check; and (3) damage to the payee thereof. Now, it is asked: Is there deceit and damage when a bad check is issued in payment of a pre-existing obligation? It is clear that under the law, the false pretense or fraudulent act must be executed prior to or simultaneously with the commission of the fraud. To defraud is to deprive some right, interest, or property by deceitful device. In the issuance of a check as payment for a pre-existing debt, the drawer derives no material benefit in return as its consideration had long been delivered to him before the check was issued. In short, the issuance of the check was not a means to obtain a valuable consideration from the payee. Deceit, to constitute estafa, should be the efficient cause of the defraudation. Since an obligation has already been contracted, it cannot be said that the payee parted with his property or that the drawer has obtained something of value as a result of the postdating or issuance of the bad check in payment of a pre-existing obligation. Finally, considering the absence of an express provision in the law, the post-dating or issuance of a bad check in payment of a pre -existing obligation cannot be penalized as estafa by means of deceit; otherwise, the legislature could have easily worded the amendatory act to that effect. Since the language of the law is plain and unambiguous, we find no justification in entering into further inquiries for the purpose of ascertaining the legislative intent. Moreover, laws that impose criminal liability are strictly construed. The rule, there-

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fore, that the issuance of a bouncing check in payment of a preexisting obligation does not constitute estafa has not at all been altered by the amendatory act. Evidently, the law penalizes the issuance of a check only if it were itself the immediate consideration for the reciprocal receipt of benefits. In other words, the check must be issued concurrently with, and in exchange for, a material gain to make it a punishable offense under Article 315, paragraph 2(d) of the Revised Penal Code. In the issuance of a check to pay a pre-existing obligation, as in the instant case, the drawer derives no such contemporary gain in return since the obligation sought to be settled is already incurred and outstanding before the check is issued. Felipe, by continuing to still effect sales and deliveries to the petitioners even without promptly getting paid, for all intents and purposes, had sold on credit, the amounts due, thus turning them into simple money obligations. Batas Pambansa Blg. 22, which now penalizes the mere issuance of a check by a drawer knowing that it will not be honored, cannot obviously apply retroactively to the petitioners. The case of Castro vs. Mendoza is a classic illustration of the fact that even if a person may not be found guilty, he may still be held civilly liable. This is to emphasize the fact that there are various sources of obligations. Take note of the defense in Castro vs. Mendoza that the factual settings gave rise to a civil, not criminal, liability. This is so because the checks were not issued simultaneously with the delivery of the construction materials. They were issued subsequent thereto. The law requires that in this type of estafa, the false pretense or fraudulent act must be executed prior to or simultaneously with the commission of the fraud. Hence, the Supreme Court said that in the issuance of a check as payment for a pre-existing debt, the drawer derives no material benefit in return as its consideration had long been delivered to him before the check was issued. In short, the issuance of the check was not a means to obtain a valuable consideration from the payee. The defense that the factual settings gave rise to a civil, rather than criminal liability is even an unequivocal act of admitting liability. It is just like saying, yes, I admit I issued the check, but I am not criminally liable because it was done in payment of a pre-existing obligation. Such a defense is a complete defense in a criminal case for estafa, but the legal and logical consequence is the admission of

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liability. So, in acquitting the accused, as it was done in Castro vs. Mendoza, the Court had to hold the accused civilly liable. In still another case, despite the dismissal of the criminal case by the fiscal, the accused was held civilly liable in another proceeding. Case: Caia vs. People G.R. No. 78777, September 2, 1992 Facts: The accused questioned the award of damages by the MTC while acquitting him of the charge of reckless imprudence resulting in serious physical injuries. The RTC deleted it but later reinstated in a motion for reconsideration. Pertinent portion of the decision of the MTC shows: The prosecution failed to show a clear and convincing evidence of such recklessness, negligence and imprudence. Prosecution witness Rene Abas stated that the speed of the jeep of the accused was on a regular speed, or not so fast, or just the very speed the jeep can run. Held: It can be gleaned therefore from the decision that the act from which civil liability might arise does not exist. It is noted by the Court that in the dispositive portion of the decision of the Municipal Trial Court, the accuseds (petitioner in this case) acquittal was based on the ground that his guilt was not proved beyond reasonable doubt, making it possible for Dolores Perez to prove and recover damages. (See Article 29, Civil Code). However, from a reading of the decision of the Municipal Trial Court, there is a clear showing that the act from which civil liability might arise does not exist. Civil liability is then extinguished. (See Padilla vs. Court of Appeals, 129 SCRA 558 [1984]). The aforequoted decision is an example of a situation where if the accused is acquitted, there may be no civil liability if there is a pronouncement that there is no basis upon which the civil liability may arise. Suppose the accused is acquitted on the ground of alibi.

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Can he be held civilly liable? The answer is in the negative. The justification was made by the Supreme Court in People vs. Badeo, et al., G.R. No. 72990, November 21, 1991, where no less than Chief Justice Marcelo B. Fernan wrote the ponencia for the Supreme Court and said: Anent Esperidion Badeos civil liability, we find that there is no basis for its imposition in view of the absence of a clear showing that he committed the crime imputed to him. (citing Padilla vs. CA, 129 SCRA 558 [1984]). Esperidion could not have been at the scene of the crime because the kaingin area where he had been staying since January 7, 1983, until he was fetched by his wife on March 22, 1985, was a good five-hour hike away through a trail. Alibi is generally considered a weak defense, but it assumes importance where the evidence for the prosecution is weak and betrays concreteness on the question of whether or not the accused committed the crime. (citing People vs. Padilla, 177 SCRA 129 [1989]; People vs. Delmendo, 109 SCRA 350 [1981]; People vs. Hizon, 163 SCRA 760 [1988]). The same rule applies if the accused has been charged of treason, rebellion, or other security offenses. There is no civil liability because there is no specific person who can claim to have been offended. Hence, whether the accused is convicted or acquitted, there is no civil liability. In still another situation, if a check is paid for a pre-existing obligation, and it bounces, the accused can be acquitted, but the court may award civil liability for the complainant because such a defense of a pre-existing obligation is a clear admission of liability; thus, he can be made liable despite his acquittal. If the rule were otherwise, then it would result in absurdity and unfairness where even if there is judicial admission of liability, still the court would not hold him civilly liable. The law could not have intended absurdity and unfairness to happen, such that it would allow a person to wait in ambush in the criminal prosecution, admit his civil liability and deny his criminal liability, then the court would make him free. This would defeat the provision of Article 100 of the Revised Penal Code that every person who is criminally liable shall also be civilly liable. The law does not say, every person who is criminally convicted shall also be civilly liable. Mere liability is sufficient; conviction is not necessary. This is in recognition of the constitutional guarantee that a person is presumed innocent, unless the contrary is proved.

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No civil liablity if defense of alibi is proven; reason. In People vs. Badeo, et al., G.R. No. 72990, November 21, 1991, an accused was acquitted on the ground of alibi. Can he be held civilly liable? Held: No. Chief Justice Marcelo B. Fernan in his ponencia said: Anent Esperidion Badeos civil liability, we find that there is no basis for its imposition in view of the absence of a clear showing that he committed the crime imputed to him. (citing Padilla vs. CA, 129 SCRA 558 [1984]). Esperidion could not have been at the scene of the crime because the kaingin area where he had been staying since January 7, 1983 until he was fetched by his wife on March 22, 1985 was a good five-hour hike away through a trial. Alibi is generally considered a weak defense but it assumes importance where the evidence for the prosecution is weak and betrays concreteness on the question of whether or not the accused committed the crime. (citing People vs. Padilla, 177 SCRA 129 [1989]; People vs. Delmendo, 109 SCRA 350 [1981]; People vs. Hizon, 163 SCRA 760 [1988]). Note that if one is acquitted on the ground of alibi, it is as if the court made the pronouncement that the accused did not commit the offense because he could not have been at the scene of the offense at the time of its commission. There is therefore, no basis for his civil liability. Dismissal of criminal case by fiscal; accused still liable for damages. It is a well-settled rule that every person criminally liable shall also be civilly liable. In Conrado Bunag, Jr. vs. CA, et al., G.R. No. 101749, July 10, 1992, a case of forcible abduction with rape was dismissed by the fiscals office of Pasay City. One of the issues raised was the effect of the said dismissal on the liability of the accused for damages. The Supreme Court: Held: In the instant case, the dismissal of the complaint for forcible abduction with rape was by mere resolution of the fiscal at the prelimi-

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nary investigation stage. There is no declaration in the final judgment that the fact from which the civil case might arise did not exist. Consequently, the dismissal did not in any way affect the right of herein private respondent to institute a civil action arising from the offense because such preliminary dismissal of the penal action did not carry with it the extinction of the civil action. The reason most often given for this holding is that the two proceedings involved are not between the same parties. Furthermore, it has long been emphasized, with continuing validity up to now, that there are different rules as to the competency of witnesses, and the quantum of evidence in criminal and civil proceedings. In a criminal action, the State must prove its case by evidence which shows the guilt of the accused beyond reasonable doubt, while in a civil action, it is sufficient for the plaintiff to sustain his cause by preponderance of evidence only. (Ocampo vs. Jenkins, et al., 14 Phil. 681). Thus, in Rillon, et al. vs. Rillon, we stressed that it is not now necessary that a criminal prosecution for rape be first instituted and prosecuted to final judgment before a civil action based on said offense in favor of the offended woman can likewise be instituted and prosecuted to final judgment. In People vs. Badeo, et al., G.R. No. 72990, November 21, 1991, it was ruled that: As every crime gives rise to a penal or criminal action for the punishment of the guilty party, and also to a civil action for the restitution of the thing, repair of the damage and indemnification for the losses (Banal vs. Tadeo, Jr., 156 SCRA 325, citing U.S. vs. Bernardo, 19 Phil. 265), whether the particular act or omission is done intentionally or negligently or whether or not punishable by law (Occena vs. Icamina, 181 SCRA 328 [1990]), subsequent decisions of the SC held that while the criminal liability of an appellant is extinguished by his death, his civil liability subsists. (People vs. Tirol, 102 SCRA 558; People vs. Pancho, 145 SCRA 323; People vs. Salcedo, 151 SCRA 220). In such case, the heirs of the deceased appellant are substituted as parties in the criminal case and his estate shall answer for his civil liability. (People vs. Sendaydiego, 81 SCRA 120 [1978]).

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Telegraph company is liable for acts of its employees in connection with a libelous telegram. Case: RCPI vs. Court of Appeals 143 SCRA 657 Facts: A message was sent to the respondent Loreto Dionela wherein libelous or defamatory words were included on the message transmitted. Private respondent filed an action for breach of contract and negligence directly against the corporation. The lower court ruled in favor of the private respondent. The Court of Appeals affirmed such decision but modified it by reducing the amount of damages awarded. Hence, this petition. Whether petitioner is directly liable for the acts of its employees. Held: The telegraph corporation is directly liable for the acts of its employees for it failed to take precautionary or necessary steps in order to prevent such humiliating incident and Articles 19 and 20 of the New Civil Code were invoked by the private respondent, and not on the subsidiary liability of the employer in Art. 1161 of the same Code. The doctrine of Res Ipsa Loquitur is proper since negligence is hard to substantiate in some cases. The case at bar is one of impression that the defamatory words speak for themselves and call for an award of damages. No recovery of damages in case of self-inflicted injury. For liability to attach under the law, injury must have been inflicted by one person on another. If it was self-inflicted, then, he is not entitled to damages, as it would be considered as damnum absque injuria. Case: Garciano vs. CA, et al. G.R. No. 96126, August 10, 1992 Facts: Petitioner was hired as a teacher at Immaculate Conception Institute in the Island of Camotes. Before the school year ended in

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1982, she went on an indefinite leave as her daughter brought her to Australia. The application for leave was approved. On June 1, 1982, a letter was sent to her husband that the founder of the school, Fr. Joseph Wiertz, as concurred in by the president of the Parents Teachers Association and the faculty, have decided to terminate her services because of the absence of a written contract and that it was difficult to look for a substitute. When she returned to the Philippines, she made inquiries from the school, and on July 7, 1982, the Board of Directors signed a letter reinstating her, and asked her to return to her work. She refused, but instead, she filed a complaint for damages. The lower court decided for her, awarding damages, but the Court of Appeals reversed the decision. The Supreme Court on appeal Held: The board of directors of the Immaculate Conception Institute, which alone possesses the authority to hire and fire teachers and other employees of the school, did not dismiss the petitioner. It in fact directed her to report for work. The petitioner, however, refused to go back to work, hence, the CA said that, it would appear, therefore, that appellee had voluntarily desisted from her teaching job in the school and has no right to recover damages from defendants-appellants. The Supreme Court further said: Liability for damages under Articles 19, 20 and 21 of the Civil Code arises only from unlawful, willful or negligent acts that are contrary to law, or morals, good customs or public policy. Said articles provide: Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

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The Court of Appeals was correct in finding that petitioners discontinuance from teaching was her own choice. While the respondents admittedly wanted her service terminated, they actually did nothing to physically prevent her from reassuming her post, as ordered by the schools Board of Directors. That the school principal and Fr. Wiertz disagreed with the Boards decision to retain her, and some teachers allegedly threatened to resign en masse, even if true, did not make them liable to her for damages. They were simply exercising their right of free speech or their right to dissent from the Boards decision. Their acts were not contrary to law, morals, good customs or public policy. They did not illegally dismiss her for the Boards decision to retain her prevailed. She was ordered to report for work on July 5, 1982, but she did not comply with that order. Consequently, whatever loss she may have incurred in the form of lost earnings was self-inflicted. Volenti non fit injuria. With respect to petitioners claim for moral damages, the right to recover them under Article 21 is based on equity, and he who comes to court to demand equity, must come with clean hands. Article 21 should be construed as granting the right to recover damages to injured persons who are not themselves at fault. (Mabutas vs. Calapan Electric Co. [C.A.], 50 OG 5828, cited in Padilla, Civil Code Annotated, Vol. 1, 1975 Ed., p. 87). Moral damages are recoverable only if the case falls under Article 2219 in relation to Article 21 (Flordelis vs. Mar, 114 SCRA 41). In the case at bar, petitioner is not without fault. Firstly, she went on an indefinite leave of absence and failed to report back in time for the regular opening of classes. Secondly, for reasons known to herself alone, she refused to sign a written contract of employment. Lastly, she ignored the Board of Directors order for her to report for duty on July 5, 1982. The trial courts award of exemplary damages to her was not justified for she is not entitled to moral, temperate or compensatory damages. (Art. 2234, Civil Code). In sum, the Court of Appeals correctly set aside the damages awarded by the trial court to the petitioner for they did not have any legal or factual basis. The reason for the ruling in Garciano vs. CA, is very evident. It is based on the principle of damnum absque injuria. Article 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

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Recovery of damages even without positive law. There is a marked distinction between Articles 20 and 21 of the Civil Code, for while the recovery under the former is based on law, the latter is not based on law. Be that as it may, if the loss or injury was due to a willful act or omission and the same is contrary to morals, public policy, or good customs, liability would still attach upon the violator. It cannot be justly denied that laws have sprung up from the fountain of morals and good customs. Grotius, one of the foremost legal philosophers and writers in the middle ages had the same conception as our codifiers when he said that law is nothing but a rule of moral action obliging to that which is right. Neither could it be denied that custom is another method of regulating human conduct which presents much the same problem in relation to law as does morals. In fact it is said from good authority that mankind has been governed by customs longer than it has lived under the reign of law. This particular provision was adopted, it is supposed, with the intention to bring into the realm of law certain good Philippine customs, morals, and traditions, especially those that concern family and personal relations. This article seems to be the reflection of the Filipino peoples concept of a well-ordered community and a synthesis of their culture. In the language of the Commission, this insertion is justified when it says, the amalgam has been developed throughout the past generation, and its manifestation in the New Civil Code is therefore natural and unforced. (Report of the Code Commission, p. 4; cited in Civil Code of the Phils., Commentaries and Jurisprudence, Alba and Garcia, 1950 ed., pp. 56-57). To justify an award for moral and exemplary damages under Article 19 to 21 of the Civil Code (on human relations), the claimants must establish the other partys malice or bad faith by clear and convincing evidence. (Solidbank Corp. vs. Mindanao Ferroalloy Corp., et al., G.R. No. 153535, July 25, 2005). How the law was justified. The codifiers of the Civil Code justified Article 21 by giving an example, thus: A seduces the nineteen-year-old daughter of X. A promise of marriage either has not been made, or cannot be proved. The girl becomes pregnant. Under the present

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laws, there is no crime, as the girl is above eighteen years of age. Neither can any civil action for breach of promise of marriage be filed. Therefore, though a grievous moral wrong has been committed, and though the girl and her family have suffered incalculable moral damage, she and her parents cannot bring any action for damages. But under this article, she and her parents would have such a right of action. But it is always said that every good law draws its breath of life from morals, hence, the Code Commission asked: would not this article obliterate the boundary line between morality and law? The answer is that, in the last analysis, every good law draws its breath of life from morals, from those principles which are written with words of fire in the conscience of man. If this premise is admitted, then the rule is a prudent earnest of justice in the face of the impossibility of enumerating, one by one, all wrongs which cause damage. When it is reflected that while codes of law and statutes have changed from age to age, the conscience of man has remained fixed to its ancient moorings, one cannot but feel that it is safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring quality which ought to be one of its superlative attributes. (Report of the Code Commission, p. 40.). Case: Pe, et al. vs. Pe 5 SCRA 200 Facts: An action for damages was filed by the parents, brothers and sisters of an unmarried woman against a married man who frequently visited her on the pretext that he wanted her to teach him how to pray the rosary. They fell in love with each other and conducted clandestine trysts. The relationship was prohibited by plaintiffs, but suddenly the woman disappeared. An action was filed based on Article 21 of the Civil Code, but it was dismissed by the lower court. Plaintiffs appealed. Held: The circumstances under which defendant tried to win Lolitas affection cannot lead to any other conclusion than that it was he who,

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thru an ingenious scheme or trickery, seduced the latter to the extent of making her fall in love with him. This is shown by the fact that defendant frequented the house of Lolita on the pretext that he wanted her to teach him how to pray the rosary. Because of the frequency of his visits to the latters family (he was allowed free access because he was a collateral relative and was considered as a member of a family), the two eventually fell in love with each other and conducted clandestine love affairs. Defendant continued his love affairs with Lolita until she disappeared from the parental home. Indeed, no other conclusion can be drawn from this chain of events than that defendant not only deliberately, but through a clever strategy, succeeded in winning the affection and love of Lolita to the extent of having illicit relations with her. The wrong he has caused her and her family is indeed immeasurable considering the fact that he is a married man. Verily, he has committed an injury to Lolitas family in a manner contrary to morals, good customs and public policy as contemplated in Article 21 of the New Civil Code. Breach of promise to marry; when damages can be recovered. By itself, breach of promise to marry is not an actionable wrong. There must be an act independent of such breach in order that it may give rise to liability. (Hermosisima vs. CA, 109 Phil. 629; Tanjanco vs. CA, 18 SCRA 994). There is no law that allows it. In fact, the intent of Congress is against it. To be actionable, there must be some act independent of the breach of promise to marry such as: 1) Carnal knowledge: a) if it constitutes seduction as defined by the Penal Code, moral damages under Art. 2219(3), NCC, may be recovered; if it constitutes tort, damages under Arts. 21 and 2219(10), NCC, may be recovered; if the woman becomes pregnant and delivers, compensatory damages may be recovered; if money was advanced and property was given to the defendant, plaintiff can recover the money and property. No one shall enrich himself at the expense of another.

b) c) d)

2)

If there was no carnal knowledge, but the act resulted in a tort, moral damages may be recovered. The rule is also

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true if money or property were advanced, in which case the same may be recovered. The case of Bunag, Jr. vs. CA, et al., G.R. No. 101749, July 10, 1992, started as a criminal case but was dismissed by the City Fiscals Office, Pasay City. It appeared that in the afternoon of September 8, 1973, the petitioner invited his former girlfriend for a merienda while on her way to school but instead of having merienda at Aristocrat Restaurant, he brought her to a motel where he raped her. Thereafter, the woman was brought to the house of his grandmother in Paraaque and lived there for 21 days as husband and wife. The following day, the father of the petitioner promised that they would get married and even applied for a marriage license. Petitioner left and never returned, so the woman went home to her parents. She filed a suit for damages for breach of promise to marry. The lower court ruled for the plaintiff and against the petitioner, but absolved his father. That portion absolving petitioners father was appealed. Petitioner likewise appealed. The CA dismissed both appeals. Held: It is true that in this jurisdiction, we adhere to the time-honored rule that an action for breach of promise to marry has no standing in the civil law, apart from the right to recover money or property advanced by the plaintiff upon the faith of such promise. (De Jesus vs. Syquia, 58 Phil. 866). Generally, therefore, a breach of promise to marry per se is not actionable, except where the plaintiff has actually incurred expenses for the wedding and the necessary incidents thereof. However, the award of moral damages is allowed in cases specified in or analogous to those provided in Article 2219 of the Civil Code. Correlatively, under Article 21 of said Code, in relation to paragraph 10 of said Article 2219, any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for moral damages. (Ford vs. CA, 186 SCRA 21 [1990]). Article 21 was adopted to remedy the countless gaps in the statutes which leave so many victims of moral wrongs helpless even though they have actually suffered material and moral injury, and is intended to vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to specifically provide for in the statutes. (Globe Mackay Cable and Radio Corp., et al. vs. CA, et al., 176 SCRA 778).

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The act of the defendant in promising to marry plaintiff to escape criminal liability, only to thereafter renege on such promise after cohabiting with her for twenty-one days, irremissibly constitute acts contrary to morals and good customs. These are grossly insensate and reprehensible transgressions which indisputably warrant and abundantly justify the award of moral and exemplary damages, pursuant to Article 21 in relation to paragraphs 3 and 10, Article 2219, and Articles 2229 and 2234 of the Civil Code. Petitioner would, however, belabor the fact that said damages were awarded by the trial court on the basis of a finding that he is guilty of forcible abduction with rape, despite the prior dismissal of the complaint therefor filed by private respondent with the Pasay City Fiscals Office. Generally, the basis of civil liability from crime is the fundamental postulate of our law that every person criminally liable for a felony is also civilly liable. In other words, criminal liability will give rise to civil liability ex delicto only if the same felonious act or omission results in damage or injury to another and is the direct and proximate cause thereof. (Calalang, et al. vs. IAC, et al., 194 SCRA 514). Hence, extinction of the penal action does not carry with it the extinction of civil liability unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. (Faraon, et al. vs. Prieta, 24 SCRA 582). Breach of promise to marry; when actionable; defense of pari delicto. In Gashem Shookat Baksh vs. CA and Marilou Gonzales, G.R. No. 97336, February 19, 1993, petitioner courted Marilou Gonzales, who also fell in love with him. He promised and proposed to marry her and they agreed to get married after the school semester, then visited the girls parents to secure their approval to the marriage. On August 20, 1987, petitioner forced her to live with him at his apartment. She was a virgin at that time but later on, his attitude towards her became different to the extent of maltreating her thus, she sustained injuries. At the confrontation before the representative of the barangay chairman, he repudiated their agreement to marry and worse, he was already married to someone living in Bacolod City. In his answer, he denied having proposed marriage to Marilou; that he never sought the approval of her parents to the marriage. He

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further alleged that he never forced her to live with him and maltreated her. After trial, he was held liable for damages, requiring him to pay P20,000.00 as moral damages and P3,000.00 as attorneys fees. The decision is anchored on the trial courts findings and conclusions that: (a) petitioner and private respondent were lovers, (b) private respondent is not a woman of loose morals or questionable virtue who readily submits to sexual advances, (c) petitioner, through machinations, deceit, and false pretenses, promised to marry private respondent, (d) because of his persuasive promise to marry her, she allowed herself to be deflowered by him, (e) by reason of that deceitful promise, private respondent and her parents in accordance with Filipino customs and traditions made some preparations for the wedding that was to be held at the end of October 1987 by looking for pigs and chickens, inviting friends and relatives and contracting sponsors, (f) petitioner did not fulfill his promise to marry her, and (g) such acts of the petitioner, who is a foreigner and who has abused Philippine hospitality, have offended our sense of morality, good customs, culture and traditions. The trial court gave full credit to the private respondents testimony because, inter alia, she would not have had the temerity and courage to come to court and expose her honor and reputation to public scrutiny and ridicule if her claim was false. The lower courts decision was affirmed by the CA, hence, this petition. The basic issues raised were: (1) (2) Held: The existing rule is that a breach of promise to marry per se is not an actionable wrong. (Hermosisima vs. CA, 109 Phil. 629 [1960]; Estopa vs. Piansay, Jr., 109 Phil. 640 [1960]). It is petitioners thesis that said Article 21 is not applicable because he had not committed any moral wrong or injury or violated any good custom or public policy; he has not professed love or proposed marriage to the private respondent; and he has never maltreated her. He criticizes the trial court for liberally invoking Filipino customs, traditions and culture and ignoring the fact that since Whether he was liable for damages for breach of promise to marry; Whether Marilou was in pari delicto, hence, he should not be liable.

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he is a foreigner, he is not conversant with such Filipino customs, traditions and culture. As an Iranian Moslem, he is not familiar with Catholic and Christian ways. He stresses that even if he had made a promise to marry, the subsequent failure to fulfill the same is excusable or tolerable because of his Moslem upbringing; he then alludes to the Muslim Code which purportedly allows a Muslim to take four (4) wives and concludes that on the basis thereof, the trial court erred in ruling that he does not possess good moral character. Moreover, his controversial common law wife is now his legal wife as their marriage had been solemnized in civil ceremonies in the Iranian Embassy. As to his unlawful cohabitation with the private respondent, petitioner claims that even if responsibility could be pinned on him for the live-in relationship, the private respondent should also be faulted for consenting to an illicit arrangement. Finally, petitioner asseverates that even if it was to be assumed arguendo that he had professed his love to the private respondent and had also promised to marry her, such acts would not be actionable in view of the special circumstances of the case. The mere breach of promise is not actionable. (citing Wassmer vs. Velez, 12 SCRA 648; Hermosisima vs. CA, 109 Phil. 629; Estopa vs. Piansay, Jr., 109 Phil. 640). It was further said that where a mans promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entice or inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of damages pursuant to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation which followed thereafter. It is essential, however, that such injury should have been committed in a manner contrary to morals, good customs or public policy. In the instant case, the SC said respondent Court found that it was the petitioners fraudulent and deceptive protestations of love for and promise to marry plaintiff that made her surrender her virtue and womanhood to him, and to live with him on the honest and sincere belief that he would keep said promise, and it was likewise these fraud and deception on appellants part that made plaintiff s parents agree to their daughter living-in with him preparatory to their supposed marriage. In short, the private respondent surren-

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dered her virginity, the cherished possession of every single Filipina, not because of lust, but because of moral seduction the kind illustrated by the Code Commission in its example earlier adverted to. The petitioner could not be held liable for criminal seduction punished under either Article 337 or Article 338 of the Revised Penal Code because the private respondent was above eighteen (18) years of age at the time of the seduction. Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of promise to marry where the woman is a victim of moral seduction. Thus, in Hermosisima vs. Court of Appeals, this Court allowed recovery of damages to the woman because: x x x we find ourselves unable to say that petitioner is morally guilty of seduction, not only because he is approximately ten (10) years younger than the complainant who was around thirty-six (36) years of age, and as highly englightened as a former high school teacher and a life insurance agent are supposed to be when she became intimate with petitioner, then a mere apprentice pilot, but also because the court of first instance found that, complainant surrendered herself to petitioner because, overwhelmed by her love for him, she wanted to bind him by having a fruit of their engagement even before they had the benefit of clergy. In Tanjanco vs. Court of Appeals, while this Court likewise hinted at possible recovery if there had been moral seduction, recovery was eventually denied because we were not convinced that such seduction existed. The following enlightening disquisition and conclusion were made in the said case: The Court of Appeals seems to have overlooked that the example set forth in the Code Commissions memorandum refers to a tort upon a minor who had been seduced. The essential feature is seduction, that in law is more than mere sexual intercourse, or a breach of a promise of marriage, it connotes essentially the idea of deceit, enticement, superior power or abuse of confidence on the part of the seducer to which the woman has yielded. (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595).

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It has been ruled in the Buenaventura case (supra), that To constitute seduction, there must in all cases be some sufficient promise or inducement and the woman must yield because of the promise or other inducement. If she consents merely from carnal lust, and the intercourse is from mutual desire, there is no seduction. (43 Cent. Dig. tit Seduction, par. 56). She must be induced to depart from the path of virtue by the use of some species of arts, persuasions and wiles, which are calculated to have and do have that effect, and which result in her ultimately submitting her reason to the sexual embraces of her seducer. (27 Phil. 121). And in American Jurisprudence, we find: On the other hand, in an action by the woman, the enticement, persuasion or deception is the essence of the injury; and a mere proof of intercourse is insufficient to warrant a recovery. Accordingly, it is not seduction where the willingness arises out of sexual desire or curiosity of the female, and the defendant merely affords her the needed opportunity for the commission of the act. It has been emphasized that to allow a recovery in all such cases would tend to the demoralization of the female sex, and would be a reward for unchastity by which a class of adventuresses would be swift to profit. (47 Am. Jr. 662). Over and above the partisan allegations, the facts stand out that for one whole year, from 1958 to 1959, the plaintiff-appellee, a woman of adult age, maintained intimate sexual relations with appellant, with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction. Plainly, there is here voluntariness and mutual passion; for had the appellant been deceived, had she surrendered exclusively because of the deceit, artful persuasions, and wiles of the defendant, she would not have again yielded to his embraces, much less for one year, without promises of marriage, and would have cut short all sexual relations upon finding that the defendant did not intend to fulfill his promise. Hence, we conclude that no case is made under Article 21 of the Civil Code, and no other cause of action being alleged, no error was committed by the Court of First Instance in dismissing the complaint. In his annotations on the Civil Code, Associate Justice Edgardo L. Paras, who recently retired from this Court, opined that in a breach

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of promise to marry where there had been carnal knowledge, moral damages may be recovered: x x x if there be criminal or moral seduction, but not if the intercourse was due to mutual lust. (Hermosisima vs. Court of Appeals, L-14628, September 30, 1960; Estopa vs. Piansay, Jr., L-14733, September 30, 1960; Batarra vs. Marcos, 7 Phil. 156; Beatriz Galang vs. Court of Appeals, et al., L-17248, January 29, 1962). (In other words, if the CAUSE be the promise to marry, and the EFFECT be the carnal knowledge, there is a chance that there was criminal or moral seduction; hence, recovery of moral damages will prosper. If it be the other way around, there can be no recovery of moral damages, because here mutual lust has intervened). x x x. Senator Arturo M. Tolentino is also of the same persuasion: It is submitted that the rule in Batarra vs. Marcos, 7 Phil. 156, still subsists, notwithstanding the incorporation of the present article (Art. 21, NCC) in the Code. The example given by the Code Commission is correct, if there was seduction, not necessarily in the legal sense, but in the vulgar sense of deception. But when the sexual act is accomplished without any deceit or qualifying circumstance of abuse of authority or influence, but the woman, already of age, has knowingly given herself to a man, it cannot be said that there is an injury which can be the basis for indemnity. But so long as there is fraud, which is characterized by wilfullness (sic), the action lies. The court, however, must weigh the degree of fraud, if it is sufficient to deceive the woman under the circumstances, because an act which would deceive a girl sixteen years of age may not constitute deceit as to an experienced woman thirty years of age. But so long as there is a wrongful act and a resulting injury, there should be civil liability, even if the act is not punishable under the criminal law, and there should have been an acquittal or dismissal of the criminal case for that reason. We are unable to agree with the petitioners alternative proposition to the effect that granting, for arguments sake, that he did promise to marry the private respondent, the latter is nevertheless also at fault. According to him, both parties are in pari delicto; hence, pursuant to Article 1412(1) of the Civil Code and the doctrine laid

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down in Batarra vs. Marcos, the private respondent cannot recover damages from the petitioner. The latter even goes as far as stating that if the private respondent had sustained any injury or damage in their relationship, it is, primarily because of her own doing, for: x x x She is also interested in the petitioner as the latter will become a doctor sooner or later. Take notice that she is a plain high school graduate and a mere employee. . . . (Annex C) or a waitress (TSN, p. 51, January 25, 1988) in a luncheonette, and without a doubt, is in need of a man who can give her economic security. Her family is in dire need of financial assistance. (TSN, pp. 51-53, May 18, 1988). And this predicament prompted her to accept a proposition that may have been offered by the petitioner. These statements reveal the true character and motive of the petitioner. It is clear that he harbors a condescending, if not sarcastic, regard for the private respondent on account of the latters ignoble birth, inferior educational background, poverty and, as perceived by him, dishonorable employment. Obviously then, from the very beginning, he was not at all moved by good faith and an honest motive. Marrying with a woman so circumstanced could not have even remotedly occurred to him. Thus, his profession of love and promise to marry were empty words directly intended to fool, dupe, entice, beguile and deceive the poor woman into believing that indeed, he loved her and would want her to be his lifes partner. It was nothing but pure lust which he wanted satisfied by a Filipina who honestly believed that by accepting his offer of love and proposal of marriage, she would be able to enjoy a life of ease and security. Petitioner clearly violated the Filipinos consent of morality and so brazenly defied the traditional respect Filipinos have for their women. It can even be said that the petitioner committed such deplorable acts in blatant disregard of Article 19 of the Civil Code which directs every person to act with justice, give everyone his due and observe honesty and good faith in the exercise of his rights and in the performance of his obligations. No foreigner must be allowed to make a mockery of our laws, customs and traditions. The pari delicto rule does not apply in this case, for while indeed, the private respondent may not have been impelled by the purest of intentions, she eventually submitted to the petitioner in sexual congress not out of lust, but because of moral seduction. In

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fact, it is apparent that she had qualms of conscience about the entire episode, for as soon as she found out that the petitioner was not going to marry her after all, she left him. She is not, therefore, in pari delicto with the petitioner. Pari delicto means, in equal fault; in a similar offense or crime; equal in guilt or in legal fault. (Blacks Law Dictionary, Fifth ed., 1004). At most, it could be conceded that she is merely in delicto. Equity often interferes for the relief of the less guilty of the parties, where his transgression has been brought about by the imposition or undue influence of the party on whom the burden of the original wrong principally rests, or where his consent to the transaction was itself procured by fraud. (34 Am. Jur. 2d. 401). In Mangayao vs. Lasud, 11 SCRA 158, We declared: Appellants likewise stress that both parties being at fault, there should be no action by one against the other. (Art. 1412, New Civil Code). This rule, however, has been interpreted as applicable only where the fault on both sides is, more or less, equivalent. It does not apply where one party is literate or intelligent and the other one is not. (cf. Bough vs. Cantiveros, 40 Phil. 209). We should stress, however, that while We find for the private respondent, let it not be said that this Court condones the deplorable behavior of her parents in letting her and the petitioner stay together in the same room in their house after giving approval to their marriage. It is the solemn duty of parents to protect the honor of their daughters and infuse upon them the higher values of morality and dignity. When not a case of breach of promise to marry. In Wassmer vs. Velez, 12 SCRA 648, Francisco Velez and Beatriz Wassmer formally set their wedding on September 4, 1954. On September 2, 1954, however, he left a note for his bride-to-be postponing the marriage because his mother was opposed to the wedding. Since then, he has never been heard of. Wassmer filed a suit for damages. Held: Surely this is not a case of breach of promise to marry. As stated, mere breach of promise to marry is not an actionable wrong. But to

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formally set a wedding and go through all the preparations and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages in accordance with Article 21. No breach of promise to marry. In Tanjanco vs. CA, 18 SCRA 994, Apolonio Tanjanco courted Araceli Santos. They were both of adult age. In consideration of defendants promise of marriage, plaintiff consented and acceded to defendants pleas for carnal knowledge, as a consequence of which, the plaintiff conceived a child. To avoid embarrassment, she resigned from her job. A suit for damages for breach of promise to marry was filed by the plaintiff when defendant refused to marry and support her and her baby. Held: The facts stand out that for one whole year, from 1958 to 1959, the plaintiff, a woman of adult age, maintained intimate sexual relations with defendant, with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction. Plainly, there is here voluntariness and mutual passion; for had the plaintiff been deceived, had she surrendered exclusively because of deceit, artful persuasions, and wiles of the defendant, she would not have again yielded to his embraces, much less for one year, without exacting early fulfillment of the alleged promise of marriage, and would have cut short all sexual relations upon finding that defendant did not intend to fulfill his promise. Hence, we conclude that no case is made under Article 21 of the Civil Code. There can be no possible basis, therefore, for an award of moral damages. In U.S. vs. Buenaventura, 27 Phil. 121, it was said that: To constitute seduction, there must in all cases be some sufficient promise or inducement and the woman must yield because of the promise or other inducement. If she consents merely from carnal lust, and the intercourse is from mutual desire, there is no seduction. She must be induced to depart from the path of virtue by the use of some species of arts, persuasions and wiles, which are calculated to have and do have that effect, and which result in her ultimately submitting her person to the sexual

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embraces of her seducer. (See also U.S. vs. Arlante, 9 Phil. 595). Article 21, applied. In Loreta Serrano vs. CA, et al., L-45125, April 22, 1991, petitioner bought some pieces of jewelry. When she needed money, she instructed her secretary to pledge the same, but the latter absconded with the amount and the pawn ticket. The pawnshop ticket stipulated that it was redeemable on presentation by the bearer. Three months later, Gloria and Amalia informed the former owner that a pawnshop ticket was being offered for sale and told her that the ticket probably covered jewelry once owned by her and pawned by one Josefina Rocco. Necita then informed Loreta, hence, she went to the pawnshop and verified that the missing jewelry was pledged there and told the owner not to permit anyone to redeem the jewelry. The owner agreed but allowed the redemption. An action for damages was filed where the trial court decided for the plaintiff. The CA reversed the decision, stating that there was no negligence on the part of the pawnshop owner. Held: Having been notified by petitioner and the police that the jewelry pawned to it was either stolen or involved in an embezzlement of the proceeds of the pledge, private respondent pawnbroker became duty-bound to hold the things pledged and to give notice to petitioner and the police of any effort to redeem them. Such a duty was imposed by Article 21 of the Civil Code which provides: Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. The circumstance that the pawn ticket stated that the pawn was redeemable by the bearer, did not dissolve that duty. The pawn ticket was not a negotiable instrument under the Negotiable Instruments Law nor a negotiable document of title under Articles 1507, et. seq. of the Civil Code. If the third person Tomasa de Leon, who redeemed the things pledged a day after petitioner and the police had notified Long Life, claimed to be the owner thereof, the prudent recourse of the pawnbroker was to file an interpleader suit, impleading both petitioner and Tomasa de Leon. The respondent pawnbro-

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ker was, of course, entitled to demand payment of the loan extended on the security of the pledge before surrendering the jewelry, upon the assumption that it had given the loan in good faith and was not a fence for stolen articles and had not conspired with the faithless Josefina Rocco or with Tomasa de Leon. Respondent pawnbroker acted in reckless disregard of that duty in the instant case and must bear the consequences, without prejudice to its right to recover damages from Josefina Rocco. Forcible taking of franchise is violative of Art. 21, NCC. In Cogeo-Cubao Operators and Drivers Assn. vs. CA, et al., G.R. No 100727, March 18, 1992, private respondent was granted a franchise to operate jeepneys. Petitioner, however, formed a human barricade and assumed the dispatching of passenger jeepneys, hence, this suit for damages. The Supreme Court said that a certificate of public convenience is included in the term property which represents the right and authority to operate its facilities for public service, which cannot be taken or interfered with without due process of law. The act of petitioner in forcibly taking over the operation of the jeepney service in the Cogeo-Cubao route without any authorization from the PSC is in violation of the corporations right to operate its services. Article 21 of the NCC governs the situation in the case at bar, hence, the SC said: It is clear from the facts of this case that petitioner formed a barricade and forcibly took over the motor units and personnel of the respondent corporation. This paralyzed the usual activities and earnings of the latter during the period of ten days and violated the right of respondent Lungsod Corp. to conduct its operations thru its authorized officers. Article 21 of the Civil Code provides that any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. The provision covers a situation where a person has a legal right which was violated by another in a manner contrary to morals, good customs, or public policy. It presupposes loss or injury, material or otherwise, which one may suffer as a result of such violation. (See also PCIB vs. CA, et al., G.R. No. 97785, March 29, 1996, 69 SCAD 707).

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Article 21 applied to justify moral damages awarded to agricultural lessees. Petitioners obtained a judgment from the Court of Agrarian Relations declaring them as agricultural lessees of the private respondents land and awarding them moral and exemplary damages for the latters act of diverting the flow of water from the farm lots in dispute, causing portions of the landholdings to dry up, in an effort to force petitioners to vacate their landholdings. The Court of Appeals modified the judgment by deleting the award for said damages as well as for attorneys fees. On appeal to the Supreme Court, it was held that petitioners were entitled to a measure of moral damages. Art. 2219 of the Civil Code permits the award of moral damages for acts mentioned in Art. 21, which stipulates that any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs, or public policy shall compensate the latter for the damage. Petitioners were denied irrigation water for their farm lots in order to make them vacate their landholdings. The defendants violated petitioners rights and caused prejudice to the latter by the unjustified diversion of water. Petitioners are also entitled to exemplary damages because the defendants acted in an oppressive manner. (Art. 2232, Civil Code). It follows that they are also entitled to attorneys fees, but the size of the fees, as well as the damages, is subject to the sound discretion of the court. (Magbanua, et al. vs. Hon. Intermediate Appellate Court, et al., L66870-72, June 29, 1985). Liability in case a wife deserts her husband. X and Y are married. Y went to the United States and obtained a decree of divorce. When she came back to the Philippines, she got married to another man. In an action for damages, the Supreme Court held that she is liable. The act is contrary to morals, good customs and public policy. There was failure to comply with her wifely duties, deserting her husband without justifiable reasons. (Tenchavez vs. Escao, 15 SCRA 355). The action can also be based on Article 72 of the Family Code since the act of the woman gave dishonor to the family. The law says: When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief.

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Declaration of nullity of marriage on the ground of psychological incapacity with award of moral damages. Case: There was a complaint for declaration of nullity of marriage filed by Noel Buenaventura against his wife Isabel Singh Buenaventura on the ground of psychological incapacity. After trial, the court declared the marriage void on the ground of psychological incapacity and awarded moral damages citing Articles 2217 and 21 of the Civil Code. Is the award correct? Why? Held: No, because the signs of psychological incapacity may become manifest only after the solemnization of the marriage. It is not correct to consider acts of a spouse after the marriage as proof of his psychological incapacity, and therefore a product of his incapacity or inability to comply with the essential obligations of marriage yet consider these acts as willful and hence as grounds for granting moral damages. It is contradictory to characterize acts as a product of psychological incapacity, and hence beyond the control of the party because of an innate inability, while at the same time considering the same set of acts as willful. By declaring the petitioner as psychologically incapacitated, the possibility of awarding moral damages on the same set of facts was negated. The award of moral damages should be predicated, not on the mere act of entering into the marriage, but on specific evidence that it was done deliberately and with malice by a party who had knowledge of his or her disability and yet willfully concealed the same. No such evidence appears to have been adduced in this case. For the same reason, since psychological incapacity means that one is truly incognitive of the basic marital covenants that one must assume and discharge as a consequence of marriage, it removes the basis for the contention that the petitioner purposely deceived the private respondent. If the private respondent was deceived, it was not due to a willful act on the part of the petitioner. Therefore, the award of moral damages was without basis in law and in fact. (Noel Buenaventura vs. CA, et al., G.R. Nos. 127358, 127449, March 31, 2005).

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When liability arises in case of abuse of right. The case of Nikko Hotel Manila Garden, et al. vs. Roberto Reyes, alias Amay Bisaya, G.R. No. 154259, February 28, 2005 is a case of a gate-crasher at a birthday party. It appears that he was at the lobby of the hotel when a friend saw him and allegedly invited him to the party. He carried the basket full of fruits being carried by his friend while they were going up the penthouse of the hotel where the party was being held. When the coordinator saw him, she asked him to just leave the place after eating as he was not invited but he did not. Instead, he shouted at the coordinator. His version was that, in a loud voice, the coordinator shouted at him telling him to leave. He refused as he was allegedly invited by one of the guests who later on denied having invited him. Instead, the guest testified that he carried the basket but warned him not to join as he was not invited, but still he went into the place. He sued the hotel, the coordinator and the guest for damages. The RTC dismissed the complaint due to lack of cause of action. The Court of Appeals reversed, holding that the manner he was asked to leave exposed him to ridicule, thus, held the defendants liable for damages. They appealed, contending that pursuant to the doctrine of volenti non fit injuria, they cannot be made liable for damages as he assumed the risk of being asked to leave and being embarrassed and humiliated in the process, as he was a gate-crasher. Is the contention correct? Why? The doctrine of volenti non fit injuria (to which a person assents is not esteemed in law as injury) refers to self-inflicted injury (Garciano vs. CA, 212 SCRA 436) or to the consent to injury (Servicewide Specialists, Inc. vs. IAC, 174 SCRA 80) which precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so. This doctrine does not find application to the case at bar because even if Reyes assumed the risk of being asked to leave the party, the defendants, under Articles 19 and 21 of the New Civil Code, were still under obligation to treat him fairly in order not to expose him to unnecessary ridicule and shame. Thus, the threshold issue is whether or not the coordinator acted abusively in asking Roberto Reyes, a.k.a. Amay Bisaya, to leave the party where he was not invited by the celebrant, thus, becoming liable under Articles 19 and 21 of the Civil Code. Parenthetically, and if she were so liable, whether or not Hotel Nikko, as her employer, is solidarily liable with her. Upon a scrutiny of the evidence, the Supreme Court said that the version of the coordinator was more credible considering that

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she has been in the hotel business for 20 years wherein being polite and discreet are virtues to be emulated that she acted politely in asking Reyes to leave. It was held that the coordinator did not abuse her right in asking Reyes to leave the party to which he was not invited, hence, he cannot be made liable under Articles 19 and 21 of the New Civil Code. The employer cannot likewise be liable. Article 19, known to contain what is commonly referred to as the principle of abuse rights, is not a panacea for all human hurts and social grievances. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible. The object of this article, therefore, is to set certain standards which must be observed not only in the exercise of ones right but also in performance of ones duties. These standards are the following: act with justice, give everyone his due and observe honesty and good faith. Its antithesis, necessarily, is any act evincing bad faith or intent to injure. Its elements are the following: (1) there is a legal right or duty; (2) which is exercised in bad faith; and (3) for the sole intent of prejudicing or injuring another. When Article 19 is violated, an action for damages is proper under Articles 20 and 21 of the Civil Code. Article 21 refers to acts contra bonus mores and has the following elements: (1) There is an act which is legal; (2) but which is contrary to morals, good custom, public order, or public policy; and (3) it is done with intent to injure. A common theme runs through Articles 19 and 21, and that is, the act complained of must be intentional. The act of the coordinator of approaching Reyes without first verifying from the guest who allegedly invited him cannot give rise to a cause of action predicated on mere rudeness or lack of consideration of one person, which calls not only protection of human dignity but respect of such dignity. Without proof of ill-motive on her part, her act cannot amount to abuse of right. She may be guilty of bad judgment which, if done with good intention, cannot amount to bad faith. Article 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him.

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Art. 22

Coverage of the law. The law was designed to place equity and justice over and above strict legalism or form. The codifiers of the Civil Code said that this law intends to uphold the spirit that giveth life rather than the letter that killeth. It now furnishes a remedy for those wrongs grievances and injustice which originally were not governed by law. In the words of one authority, this remedy may be availed of now to right a wrong that heretofore has been left unpunished or unprovided for; for it is a well-known principle in legislation that a law is intended to furnish a just solution or an equitable settlement to any injustice committed or grievance done. In the language of the codifiers, a question is posed thus: Does it not redound to the common good that rights which lie deep in the recesses of mans conscience be extracted from this moral bedrock and set into the statutory law? Furthermore, the codifiers state that: this task is peculiarly within the scope of codification, which ought to reduce to a minimum the number of cases, where natural justice and positive law are at variance with each other. In other words, the Code Commission has justified this insertion as being in keeping with modern trends in legislation and the progressive principles of law. There is no doubt that the principles of justice and equity not only pervade almost all legal systems but take the mission of the positive law where this is either silent or lacking. It is likewise of wide acceptance, especially among common law countries, that equity furnishes more adequate remedies than positive law. (Garcia and Alba, supra, p. 59). Illustrations. A certain property left and temporarily forgotten by the owner is not lost, but is mislaid property, of which the owner is still constructively in possession, although its custody may be in another on whose premises it has been left. Thus, when A left his hat in the business office of B who found As hat and refused to return the hat to A upon demand, it can be said that B is bound to return As hat under this provision, because B should not profit by the mere forgetfulness of A, nor should the latter be deprived of his belonging by mere casual or accidental misplacement thereof. It has been held in a case that, where a certain personal property is hidden by its owner who forgot to retake it and then found by another, that thing was not considered a lost property although the finder did not know its owner since the purpose of hiding it was for safekeeping and was not an involuntary parting of possession. (Sovern vs. Yoren, 16 Ord. 269, No. Pa. 100, 8 Am. St. Rep. 293). But where articles are accidentally dropped in any public place, public thoroughfare, or street, they are lost in the legal sense. (Hamaker vs. Blanchard, 90

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Pa. 377, 35 Am. Rep. 664). Likewise, it is not a case of losing where a person puts a package on the seat of a common carrier and forgets to take it with him when he leaves the car (State vs. Courtsol, 89 Conn. 564, 94 A. 973, LRA 1916, 465) or where money is left on a desk in a private apartment of a safe-deposit company (Silcott vs. Louisville Trust Co., 205 Ry. 234) or where hides are placed in a vat for the purpose of tanning and forgotten by the person who put them there. (Livermore vs. White, 74 Mo. 452; 43 Am. Rep. 600). On the other hand, a pocketbook found on the ground under a table in a public amusement place is lost property, because the element of involuntary parting with the possession is present (Hoagland vs. Forest Park Highlands Amusement Co., 170 Mo. 335, 70 S.W. 878, 94 Am. St. Rep. 740) and the same is true as to money found in a crevice or interspaced in a safe. (Durfee vs. Jones, RI 588, 23 Am. Rep. 528). The law is founded on the principle of placing equity and justice above strict legalism or form. For, it is iniquitous and unconscionable to even think that one who is benefited by an act or event of another should appropriate said benefit without paying the price for the same. The obligation referred to in the law may arise from quasi-contracts falling under Articles 2164 to 2175 of the Civil Code; or from quasi-delicts or even from acts or omissions punishable by law. The foregoing provisions of law envision the principle that no one shall be unjustly enriched or benefited at the expense of another. Principle of solutio indebiti. This is the legal basis for the principle that no one shall enrich himself at the expense of another. In the case of Commissioner of Internal Revenue vs. Firemans Fund Insurance Co., March 9, 1987, the Supreme Court said that the government is not exempt from its application. Hence, the government cannot collect taxes twice on the same transaction; otherwise, it would unduly enrich itself at the expense of the taxpayer. Suppose a person continues to hold property already sold by him to another, does this not amount to unjust enrichment as when he continues to reap the fruits of such property? Yes, because a person cannot be allowed to unjustly enrich himself at the expense of another by holding on to property no longer belonging to him. (Obaa vs. Court of Appeals, G.R. No. L-36249, March 29, 1985).

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Arts. 23-24

There is unjust enrichment when a person unjustly retains a benefit to the loss of another, or when a person retains money or property of another against the fundamental principles of justice, equity and good conscience. Article 22 of the Civil Code provides that every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. The principle of unjust enrichment under Article 22 requires two conditions: (1) that a person is benefited without a valid basis or justification, and (2) that such benefit is derived at anothers expense or damage. (Car Cool Philippines, Inc. vs. Ushio Realty and Development Corp., G.R. No. 138088, January 23, 2006). Article 23. Even when an act or event causing damage to anothers property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited. What is contemplated by Article 23 is an involuntary act or an act which though unforeseen could not have been avoided. This is based on equity. The Code Commission gave an example of a situation covered by this rule, thus: Without As knowledge, a flood drives his cattle to the cultivated highland of B. As cattle are saved, but Bs crop is destroyed. True, A was not at fault but he was benefited. It is but right and equitable that he should indemnify B. (Report of the Code Commission, pp. 41-42). Article 24. In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection. Who are protected by the law? The law is designed to protect those at a disadvantaged position by reason of moral dependence, ignorance, indigence, mental weakness, tender age and other handicap. It is designed to implement the principle of parens patriae, and the courts, as guardians of the rights of the people, are called upon to implement such policy.

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Article 24 of the Civil Code is an implementation of the social justice clause in the Constitution. In his message to the National Assembly on February 16, 1938, President Manuel L. Quezon said: We are earnestly concerned with social justice. Without a strict application of social justice to all elements of the community, general satisfaction of the people with their government is impossible to achieve. Here, in the just and equitable solution of social problems, is the real test of the efficiency of democracy to meet present-day conditions of society. Social justice involves many and varied questions, such as taxation, wages, land ownership, insurance against accidents, old age, etc... almost alone, the masses have built the Commonwealth by their sacrifices... Now, we are fully prepared to act, and we must act at once, if our people are to continue placing their confidence, for the remedy of the social evils which embitter their life (sic) is entirely in our hands. What the protection covers. The law is explicit in giving protection to one who is at a disadvantaged position in all contractual, property or other relations. Hence, in the case of the Heirs of John Sycip, et al. vs. CA, et al., any transaction involving real properties with Non-Christian Filipinos must be approved by the provincial governor of the place; otherwise, it is void. It is perceived that those who belong to the cultural minorities can be easy prey of the more intelligent people due to the formers ductility. But take note that the law merely gives protection to the illiterates, a classification intended by the legislature, designed to give them ample protection, which can be considered as an implementation of the social justice concept of President Magsaysay, that those who have less in life should have more in law. Courts are bound to protect the rights of the less privileged. In Valenzuela vs. Court of Appeals, et al., G.R. No. 56168, December 22, 1988, an illiterate old man obtained a loan from a rural bank for P300.00. What was reflected in his record, however, was P5,000.00. In an action for annulment and/or reformation of instrument, the lower court ordered the reformation of the contract to reflect the true intention of the parties. Evidences to support reformation are: (1) receipt signed by the old man (deceased showing that the loan was for P300.00 only); and (2) testimonies of the wife, as well as a companion, that the amount of the loan was only P300.00.

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Art. 24

On appeal, the Supreme Court said that this was one of the fraudulent and anomalous transactions of the bank. The bank took advantage of the old man, hence, in the exercise of the Courts duty to protect the rights of people with limited education, it affirmed the lower courts decision, based on Article 24, NCC. Award of moral damages was also sustained due to the mental anguish, serious anxiety and moral shock suffered by the heirs as a consequence of the fraudulent act of the rural bank. Law applied in a rape case. Cognizant of its duty under the law to give protection to the people, the Supreme Court, in People vs. Casipit, applied the principle of parens patriae in a rape case committed on a girl of tender age by a relative. There are times when rape is very difficult to prove, but in the above-cited case, the Supreme Court applied the principle of parens patriae when it said that where a child of tender age is raped especially by a relative, the Court would always have the tendency to rely on her testimony. More specifically, in People vs. Casipit, 51 SCAD 482, 232 SCRA 638 (May 31, 1994), the Supreme Court said: Where the victims of rape are of tender years, there is a marked receptivity on the part of the courts to lend credence to their version of what transpired, a matter not to be wondered at, since the State, as parens patriae, is under obligation to minimize the risk of harm to those who, because of their minority, are not yet able to fully protect themselves. Case: Heirs of John Z. Sycip, et al. vs. Court of Appeals, et al. G.R. No. 76487, November 9, 1990 Facts: Melecio Yu and Talinanap Matualaga are married. While they were separated, a certain Alfonso Non approached Melecio and convinced him to sell a parcel of land at P200.00 per hectare which belonged to his wife. He assured Melecio that he could secure his

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wifes signature; otherwise, the contract would be void. With such understanding, Melecio signed the document. It turned out that the deed involved the sale of more than 54 hectares in favor of John Sycip. Can the land be recovered? Held: Yes. It is not disputed that the private respondents are Muslims who belong to the cultural minority or non-Christian Filipinos as members of the Maguindanao Tribe. Any transaction involving real property with them is governed by the provisions of Sections 145 and 146 of the Revised Administrative Code of Mindanao and Sulu, Section 120 of the Public Land Act (Commonwealth Act No. 141, as amended) and Republic Act No. 3872, further amending the Public Land Act. Section 145 of the Revised Administrative Code of Mindanao and Sulu provides that any transaction involving real property with said non-Christian tribes shall bear the approval of the provincial governor wherein the same was executed or of his representative duly authorized in writing for such purpose, endorsed upon it. Section 146 of the same Code considers every contract or agreement made in violation of Section 145 as null and void. Section 120 of the Public Land Act (Commonwealth Act No. 141) provides that conveyances and encumbrances made by persons belonging to the so-called non-Christian tribes shall be valid if the person making the conveyance or encumbrance is able to read and can understand the language in which the instrument of conveyance or encumbrance is written. Conveyances and encumbrances made by illiterate non-Christians shall not be valid unless duly approved by the Commissioner of Mindanao and Sulu. Republic Act No. 3872 provides that conveyances and encumbrances made by illiterate non-Christian or literate non-Christians, where the instrument of conveyance or encumbrance is in a language not understood by said literate non-Christians, shall not be valid unless duly approved by the Chairman of the Commission on National Integration. The obvious intent of the statutes is to guard the patrimony of illiterate non-Christians from those who are inclined to prey upon their ignorance or ductility. (Amarante vs. Court of Appeals, G.R. No. 76386, October 26, 1987).

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Art. 25

Article 25. Thoughtless extravagance in expenses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the instance of any government or private charitable institution. Basis of the law. One authority said: One need not stretch his imagination to witness today a continuing carnival of pomp and vanity. The love for display of luxuries, coupled with the glare for vainglories and frivolities, carries with it the corruption of society and the debasement of public morality and decency. Thoughtless and wasteful extravagance not only pollute the general public but emasculate and feminize the strong fibers of civilization and render stunted the good virtues of the righteous. A continued and prolonged obsession in unreasonable and unpardonable excesses will, in the last computation or analysis, bring about not only moral degeneration but also material disintegration equally harmful and destructive to both who indulge in them and those who are under or near such bad and evil influences. One of the main causes of unrest among the poor or among the masses, now and in the past, is the all too often and frequent ostentation of vanity and riches in open disregard of the privation and poverty of the great majority. All this exhibition of pomp and thoughtless waste of money and fortune redound to retard the rapid material and economic advancement of society and gives the youth a deleterious and debasing example and affords the old no reason for justification or jubiliation wheresoever and whensoever done. Hence, the necessity of this new rule of law which aims to curb, if not altogether culminate, this wordly vanity of vanities. (Garcia & Alba, supra, pp. 67-68). Where the law applies. In order that Article 25 of the Civil Code may apply, there must be a declared public want or emergency. Thoughtless extravagance in expenses for pleasure during such period may cause hatred among the people, especially those adversely affected by such emergency.

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Illustration: After a typhoon which rendered practically everybody homeless in a community, a marriage is celebrated with lavishness where there are people who have practically no food to eat; such act may be prevented by an order of a court at the instance of a government or private charitable institution. Note that not anyone can ask the courts to prevent such thoughtless extravagance. It must be a government or private charitable institution that should ask for an order. Actually, this provision of the law is a manifestation of the power of the community to safeguard public welfare under the police power of the state. Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: (1) Prying into the privacy of anothers residence;

(2) Meddling with or disturbing the private life or family relations of another; (3) friends; Intriguing to cause another to be alienated from his

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. The rule emphasizes that a persons dignity, personality, privacy and peace of mind must be respected. This can be traced from the Roman principle that a mans home is his castle and even the king could not enter without his permission. The Code Commission rationalized the law by saying: The sacredness of human personality is a concomitant of every plan for human amelioration. The touchstone of every system of laws, of the culture and civilization of every country, is how far it dignifies man. If in legislation,

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Art. 26

inadequate regard is observed for human life and safety; if the laws do not sufficiently forestall human suffering or do not try effectively to curb those factors or influences that wound the noblest sentiments; if the statutes insufficiently protect persons from being unjustly humiliated; in short, if human personality is not properly exalted then the laws are indeed defective. xxx xxx xxx The present laws, criminal and civil, do not adequately cope with the interferences and vexations mentioned in Article 26. The privacy of ones home is an inviolable right. Yet the laws in force do not squarely and effectively protect this right. xxx xxx xxx The acts referred to in No. 2 are multifarious, and yet many of them are not within the purview of the laws in force. Alienation of the affection of anothers wife or husband, unless it constitutes adultery or concubinage, is not condemned by the law, much as it may shock society. There are numerous acts, short of criminal unfaithfulness, whereby the husband or wife breaks the marital vows, thus causing untold moral suffering to the other spouse. Why should not these acts be the subject-matter of a civil action for moral damages? In American law they are. Again, there is the meddling of so-called friends who poison the mind of one or more members of the family against the other members. In this manner many a happy family is broken up or estranged. Why should not the law try to stop this by creating a civil action for moral damages? Of the same nature is that class of acts specified in No. 3; intriguing to cause another to be alienated from his friends. Not less serious are the acts mentioned in No. 4; vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect or other personal condition. The penal laws against defamation and unjust vexation are glaringly inadequate.

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Religious freedom does not authorize anyone to heap obloquy and disrepute upon another by reason of the latters religion. Not a few of the rich people treat the poor with contempt because of the latters lowly station in life. To a certain extent this is inevitable, from the nature of the social make-up, but there ought to be a limit somewhere, even when the penal laws against defamation and unjust vexation are not transgressed. In a democracy, such a limit must be established. The courts will recognize it in each case. Social equity is not sought by the legal provision under consideration, but due regard for decency and propriety. Place of birth, physical defect and other personal conditions are too often the pretext of humiliation cast upon persons. Such tampering with human personality, even though the penal laws are not violated, should be the cause of a civil action. (Report of the Code Commission, pp. 3234). Case: St. Louis Realty Corporation vs. Court of Appeals 133 SCRA 179 Facts: St. Louis Realty caused to be published with the permission of Arcadio S. Arcadio (but without permission of Doctor Aramil) in the issue of the Sunday Times of December 15, 1968, an advertisement with the heading WHERE THE HEART IS. Below that heading was the photograph of the residence of Doctor Aramil and the Arcadio family and then below the photograph was the following write-up: Home is where the heart is. And the hearts of MR. AND MRS. ARCADIO S. ARCADIO and their family had been captured by BROOKSIDE HILLS. They used to rent a small 2-bedroom house in a cramped neighborhood, sadly inadequate and unwholesome for the needs of a large family. They dream(ed) of a more pleasant place, free from the din and dust of city life, yet near all facilities. Plans took shape when they heard of BROOKSIDE HILLS. With thrift

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and determination, they bought a lot and built their dream house .... for P31,000. The Arcadios are now part of the friendly, thriving community of BROOKSIDE HILLS .... a beautiful first-class subdivision planned for wholesome family living. The same advertisement appeared in the Sunday Times dated January 5, 1969. Doctor Aramil, a neuro-psychiatrist and a member of the faculty of U.E. Ramon Magsaysay Memorial Hospital, noticed the mistake. On that same date, he wrote St. Louis Realty a letter of protest. The trial court awarded Aramil P8,000 as actual damages, P20,000 as moral damages and P2,000 as attorneys fees. St. Louis Realty appealed to the Court of Appeals. The Appellate Court affirmed that judgment. Held: In this appeal, St. Louis Realty contends that the Appellate Court ignored certain facts and resorted to surmises and conjectures. This contention is unwarranted. The Appellate Court adopted the facts found by the trial court. Those factual findings are binding on this Court. St. Louis Realty also contends that the decision is contrary to law and that the case was decided in a way not in conformity with the rulings of this Court. It argues that the case is not covered by Article 26 which provides that every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. Prying into the privacy of anothers residence and meddling with or disturbing the private life or family relations of another and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief. The damages fixed by Judge Leuterio are sanctioned by Articles 2200, 2208 and 2219 of the Civil Code. Article 2219 allows moral damages for acts and actions mentioned in Article 26. As lengthily explained by Justice Gatmaitan, the acts and omissions of the firm fall under Article 26. St. Louis Realtys employee was grossly negligent in mixing up the Aramil and Arcadio residences in a widely-circulated publication like the Sunday Times. To suit its purpose, it never made any writ-

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ten apology and explanation of the mixup. It just contented itself with a cavalier rectification. Persons, who know the residence of Doctor Aramil, were confused by the distorted, lingering impression that he was renting his residence from Arcadio or that Arcadio had leased it from him. Either way, his private life was mistakenly and unnecessarily exposed. He suffered diminution of income and mental anguish. Article 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken. The official duty referred to in the law must be a ministerial duty, not a discretionary function. The duty of a fiscal to file a case after preliminary investigation is discretionary. Hence, his refusal to prosecute a case after preliminary investigation because he finds no sufficient evidence to establish a prima facie case is not a refusal without just cause to perform an official duty. (Zulueta vs. Nicolas, 102 Phil. 944; Javellana vs. Tayo, 6 SCRA 1042). If the duty of the officer is essentially discretionary, like the power to appoint, there is no liability for non-feasance since discretion may involve the non-performance of an act. This article presupposes that a person actually suffers a material or a moral loss on account of the unreasonable refusal or neglect of a public servant or employee to perform his official duty without a just cause therefor. In other words, there must be a willful or illegal act or omission by a public servant in the performance of his official duty, by reason of which a person suffers thereby either a material or a moral loss. Analysis. There must necessarily be a wrong committed independent of a contract and that this wrong constitutes a breach of duty which this provision, as distinguished from a mere contract, has imposed upon a public servant, i.e., a tax collector. The public servants civil liability must be determined by his own conduct and not merely by his mental state of mind or that of the taxpayers. Likewise, his conduct should be accompanied by a material or a moral loss suffered, that is,

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his refusal or neglect in the performance of his official duty gives rise to the loss suffered, for otherwise, an action may not lie. It is necessary, therefore, that the damage consisting either of a material or a moral loss must result in some injury to the taxpayer concerned and that said loss is the direct result of the breach of a public duty owing to the public servant or employee against whom a complaint for damages is lodged. It is well to remember in this connection, that a wrong without damage, or injuria absque damno, does not constitute a good cause of action under this provision. There is a general rule that a person injured through the act or omission of another in violation of law is entitled to actual pecuniary compensation for the injury sustained, and this particular provision seems to fall within the general rule. It is not alone that there must be an invasion of the plaintiff s right resulting in a material or a moral loss to himself but that the loss should result directly or indirectly from either the neglect or the refusal to perform a specific duty; in other words, not alone must there be the breach of a legal duty by a public servant or employee sought to be charged or held liable, but the right of the taxpayer must have been infringed as a result thereby. As a necessary consequence, the exaction of the obligation due the public servant should be proved along with the material or moral loss suffered by the person seeking relief therefrom. It seems that a mere intention to do wrong not connected with the infringement of a legal right cannot be made the subject of an action under this provision of law, for the intention to do wrong must be accompanied with the doing or accomplishment of the act intended. (Garcia and Alba, Civil Code of the Phils., Commentaries and Jurisprudence, 1950 ed., pp. 74-75). Neglect of duty. Where duties are imposed upon an individual officer, questions of liability for neglect, corresponding to the questions which arise when official duty fails in performance, are of frequent occurrence. Thus, it was held in a case that where the duty imposed is obviously meant to be a duty to the public, and also to individuals, and the penalty is made payable to the State or to the individual, the right of an individual injured to maintain an action on the case of breach of duty owing to him will be unquestionable. (3 Cooley on Torts, p. 352). General principles governing redress for neglect. The term neglect implies the absence of care, prudence, and forethought as under circumstances duly required should be given or

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exercised; and although the terms slight negligence, ordinary negligence, and gross negligence are frequently employed to characterize particular conduct, yet the terms themselves have no distinctive meaning or importance in law and only imply that there has been culpable neglect under circumstances calling for different degrees of care; any injurious neglect of duty being actionable. Thus, it was held in a case that the law imposes on those who follow certain callings in life exceptional obligations, requiring in some cases a care and caution far beyond what is required generally; also that in case of official and other statutory duties, as this one, an individual may bring suit for failure in performance whenever it appears that they were imposed for his advantage or protection. (Cooley on Torts, p. 364). Case: Ledesma vs. Court of Appeals G.R. No. L-54598, April 15, 1988 Facts: Some students of a state college formed an organization named Student Leadership Club. Delmo was elected treasurer. In that capacity, she extended loans from the club funds to some students. The college president, claiming that extending loans was against school rules, wrote Delmo informing her that she was being dropped from the membership of the club and that she would not be a candidate for any award from the school. Delmo appealed to the Bureau of Public Schools. The Bureau directed the college president not to deprive Delmo of any award if she is entitled to it. On April 27, 1966, the President received the Directors decision. On the same day, he received a telegram airmail records Delmo missent that office. The Bureau Director asked for the return only of the records, but the President allegedly mistook the telegram as ordering him to also send the decision back. So he returned by mail all the records plus the decision to the Director. The next day, the President received from the Bureau Director a telegram telling him to give a copy of the decision to Delmo. The President in turn sent a telegram to the Bureau Director telling him that he had returned the decision and that he had not retained a copy. On May 3, the day of graduation, the President again received another telegram from the Director, ordering him not to deprive

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Delmo of any honors due her. As it was impossible by this time to include Delmos name in the program as one of the honor students, the President let her graduate as a plain student instead of being awarded the latin honor for magna cum laude. Held: Under Art. 27 of the Civil Code, any person suffering material or moral loss because a public servant or employee refuses or neglects without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken. Thus, the President of the state college was held liable for damages under Article 27 of the Civil Code for failure to graduate a student with honors, on account of said officials neglect of duty and callousness. Undoubtedly, Delmo went through a painful ordeal brought about by the petitioners neglect of duty and callousness. Thus, moral damages under Article 27 of the Civil Code are but proper. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of defendants wrongful act or omission. Exemplary damages are also in order. The rationale behind exemplary or corrective damages is, as the name implies, to provide an example or correction for the public good. Article 28. Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage. Unfair competition in itself is a crime punishable under Article 189 of the Revised Penal Code. While competition in business is healthy because it tends to improve ones products, yet if one uses force, intimidation, deceit, machination or any other unjust, oppressive or high-handed method to deprive others of legitimate earnings, then that act may give rise to an action for damages. Where a person drives away his competitors in business by preventing them from selling their goods inspite of their licenses

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to engage in that business in a place, that person is liable for damages and the action may be filed independently of the criminal prosecution. Evils of capitalistic world. This being a new provision, there is enough justification and reasonable necessity to elucidate its meaning, concept, and implications, hence the following comments: In a democratic form of government like ours, free enterprise and fair competition are of the essence. In actuality, however, free enterprise is stifled, if not altogether supplanted, by rich enterprises of the rich, by the rich, and for the rich. Monopolies have not only enriched the rich but have impoverished and pauperished the poor and the paupers. They are the worst deterrent, if not obstacle, to the fair distribution of wealth and surpluses of a community, or of a nation, or of the world. These monopolies and trusts are not altogether brought about in a sudden, but have grown and spread throughout the length and breadth of the capitalistic world on account of the pernicious and evil effects of unfair competition and cut-throat rivalries in commerce, business, trade and other gainful occupations and undertakings. It is this reason, we suppose, that has prompted the Code Commission to insert a regulatory, if not a repressive, measure as contemplated in this article. (Garcia and Alba, Civil of Code of the Phils., Commentaries and Jurisprudence, 1950 ed., p. 77). Article 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. The law clearly allows the filing of a civil action even if the accused is acquitted beyond reasonable doubt. The reason for this is

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that the evidence required in proving the criminal liability of an accused is different from the degree of proof necessary in a civil case. This rule also shows the independent character of the liability of the accused under the Penal Code. Case: Urbano vs. Intermediate Appellate Court G.R. No. 72964, January 7, 1988 Facts: A vehicular accident happened one morning resulting in the filing of an information for damage to property with physical injuries thru reckless imprudence. Accused was acquitted because his guilt has not been proved beyond reasonable doubt. A civil action for damages based on tort was filed, but the same was dismissed for lack of reservation by the complainant. Held: It is a well-settled doctrine that a person, while not criminally liable, may still be civilly liable. The judgment of acquittal extinguishes the civil liability of the accused only when it includes a declaration that the facts from which the civil liability might arise did not exist. (Padilla vs. CA, 129 SCRA 558; People vs. Ligon, et al., G.R. No. 74041, July 29, 1987). The ruling is based on Article 29, NCC, which provides that when the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. The reason for the provision of Article 29 of the Civil Code, which provides that the acquittal of the accused on the ground that his guilt has not been proved beyond reasonable doubt does not necessarily exempt him from civil liability for the same act or omission, has been explained by the Code Commission as follows: The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one of the most serious flaws in the Philippine legal system. It

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has given rise to numberless instances of miscarriages of justice, where the acquittal was due to a reasonable doubt in the mind of the court as to the guilt of the accused. The reasoning followed is that inasmuch as the civil responsibility is derived from the criminal offense, when the latter is not proved, civil liability cannot be demanded. This is one of those cases where confused thinking leads to unfortunate and deplorable consequences. Such reasoning fails to draw a clear line or demarcation between criminal liability and civil responsibility, and to determine the logical result of the distinction. The two liabilities are separate and distinct from each other. One affects the social order and the other, private rights. One is for the punishment or correction of the offender while the other is for reparation of damages suffered by the aggrieved. The two responsibilities are so different from each other that Article 1813 of the present Spanish Civil Code reads thus: There may be a compromise upon the civil action arising from a crime; but the public action for the imposition of the legal penalty shall not thereby be extinguished. It is just and proper that, for the purpose of the imprisonment of or fine upon the accused, the offense should be proved beyond reasonable doubt. But for the purpose of indemnifying the complaining party, why should the offense also be proved beyond reasonable doubt? Is not the invasion or violation of every private right to be proved only by a preponderance of evidence? Is the right of the aggrieved person any less private because the wrongful act is also punishable by the criminal law? (Report of the Code Commission, p. 45. See also: People vs. Ligon, G.R. No. 74041, July 29, 1987). Additionally, the provisions of Rule 111, Sec. 2(c) of the Rules of Court state that extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. x x x A person who is acquitted beyond reasonable doubt may be held civilly liable in the same judgment of acquittal.

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Case: Padilla vs. Court of Appeals 129 SCRA 558 Facts: The petitioners, by means of threats, force and violence, prevented Antonio Vergara and his family to close their stall, under lease from the municipal government, located at the public market of Jose Panganiban, Camarines Norte; and by subsequently forcibly opening the door of said stall and thereafter demolishing and destroying said stall and the furniture therein by axes and other massive instruments, and carrying away the goods, wares, and merchandise in order to abate what they considered as nuisance per se. After trial, the Court of First Instance of Camarines Norte rendered a decision finding the accused guilty beyond reasonable doubt of the crime of grave coercion and imposed upon them an imprisonment of five months and one day; to pay a fine of P500.00 each; to pay actual and compensatory damages in the amount of P10,000.00; moral damages in the amount of P30,000.00; and another P10,000.00 for exemplary damages, jointly and severally, and all the accessory penalties provided for by law; and to pay the proportionate costs of the proceedings. The petitioners appealed the judgment of conviction to the Court of Appeals contending that the trial courts finding of grave coercion was not supported by the evidence and that the town mayor had the power to order the clearance of market premises and the removal of complainants stall because the municipality had enacted municipal ordinances pursuant to which the market stall was a nuisance. The petitioners questioned the imposition of prison terms and challenged the order to pay fines, actual and compensatory damages, moral damages, exemplary damages, and the costs of the suit. The Court of Appeals modified the judgment appealed from in the sense that the appellants were acquitted on the ground of reasonable doubt but ordered the appellants to pay jointly and severally complainants the amount of P9,600.00 as actual damages. Petitioners filed a petition for certiorari to the Supreme Court to review the decision of the Court of Appeals contending that the acquittal of the defendants-appellants as to criminal liability results in the extinction of their civil liability.

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Issue: Is civil liability extinguished where acquittal is based on reasonable doubt that the accused is guilty of the crime charged? Held: Article 29 of the Civil Code provides that: When the accused in the criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. There appear to be no sound reasons to require a separate civil action to still be filed considering that the facts to be proved in the civil case have already been established in the criminal proceedings where the accused was acquitted. Due process has been accorded the accused. To require a separate civil action simply because the accused was acquitted would mean needless clogging of court dockets and unnecessary duplication of litigation with all its attendant loss of time, effort, and more, on the part of all concerned. The petitioners were acquitted not because they did not commit the acts stated in the charge against them. There is no dispute over the forcible opening of the market stall, its demolition with axes and other instruments, and the carting away of the merchandise. The defense that they did so in order to abate what they considered a nuisance per se is untenable. The Vergaras have been paying rentals for the premises to the government which allowed them to lease the stall. It is therefore far-fetched to say that the stall was a nuisance per se which could be summarily abated. The petitioners were acquitted because the acts they committed were denominated coercion when they properly constituted some other offense such as threat or malicious mischief.

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Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil action might arise did not exist. Extinction of the criminal liability does not necessarily carry with it the civil liability. In Ruiz vs. Ucol, et al., G.R. No. L-45404, August 7, 1987, the administrative charge filed by Ruiz against Ucol was dismissed. He, however, filed a criminal complaint for libel on alleged libelous portions of Ucols answer. He entered his appearance and participated in the criminal prosecution. When Ucol was acquitted on reasonable doubt, he filed a separate civil action for damages. Hence, Ucol filed a motion to dismiss which was granted. Ruiz went to the Supreme Court on certiorari where he based his contention on the following: ART. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted x x x. (NCC). Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. (RULE 111, Sec. 2[c], Rules of Court). Held: The right of Ruiz under the above provisions to file the civil action for damages based on the same facts upon which he instituted the libel case is not without limitation. The case filed by Ruiz showed a pure pattern of harassment. In fact, the answer of Ucol in the administrative case did not contain libelous statements. Just because the accused was acquitted because his guilt was not proven beyond reasonable doubt, it does not follow that he is free from civil liability. While the guilt of the accused in a criminal prosecution must be established beyond reasonable doubt, only a preponderance of evidence is required in civil cases. The judgment of acquittal extinguishes the civil liability of the accused only when it

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includes a declaration that the facts from which the civil liability might arise did not exist. (citing Padilla vs. C.A., 129 SCRA 558). The reason for the provisions of Article 29 of the Civil Code, which provide that the acquittal of the accused on the ground that his guilt has not been proved beyond reasonable doubt does not preclude a civil action for damages for the same act or omission, is that the two liabilities are separate and distinct from each other. One is for the punishment or correction of the offender while the other is for reparation of damages suffered by the aggrieved party. The two responsibilities are different from each other. (People vs. Ligon, L-74041, July 29, 1987). So that if a person is charged of an offense and he gets acquitted, and there is a pronouncement in the judgment of acquittal that there is no basis upon which the civil liability may exist, then, a separate civil action may no longer prosper. Article 30. When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of. A civil action to enforce the civil liability of the accused arising from the crime charged as a felony may be filed ahead of the criminal action. In that case, the plaintiff is required to prove his case by preponderance of evidence. The law allows the filing of a civil action; but the moment a criminal action is filed, the civil action is suspended. Thus, Rule 111, Section 2(a) of the Rules of Court provides that: Whenever the offended party shall have instituted the civil action as provided for in the first paragraph of Section 1 hereof before the filing of the criminal action and the criminal action is subsequently commenced, the pending civil action shall be suspended, in whatever stage before final judgment it may be found, until final judgment in the criminal action has been rendered. However, if no final judgment has been rendered by the trial court in the civil action, the same may be consolidated with the criminal action upon application with the court trying the criminal action. If the application is granted, the evidence presented and admitted in the civil action shall be deemed

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automatically reproduced in the criminal action, without prejudice to the admission of additional evidence that any party may wish to present. In case of consolidation, both the criminal and the civil actions shall be tried and decided jointly. Law recognizes an alternative and separate action. In People vs. Bayotas, 55 SCAD 140, 236 SCRA 239 (September 2, 1994), it was observed that what Article 30 recognizes is an alternative and separate civil action which may be brought to demand civil liability arising from a criminal offense independently of any criminal action. In the event that no criminal proceedings are instituted during the pendency of said civil case, the quantum of evidence needed to prove the criminal act will have to be that which is compatible with civil liability, and that is, preponderance of evidence and not proof beyond reasonable doubt. It must be remembered that if the accused dies during the proceedings or on appeal, there is extinguishment of the criminal liability and the civil liability arising from the crime charged as a felony. In the case of People vs. Sendaydiego, 81 SCRA 120, the Supreme Court held that claims for civil liability ex delicto survive the death of the accused, thereby ipso facto treating the civil action impliedly instituted with the criminal, as one filed under Article 30, as though no criminal proceedings had been filed but merely a separate civil action. The Supreme Court observed that the ruling had the effect of converting such claims from one which is dependent on the outcome of the criminal action to an entirely new and separate one, the prosecution of which does not necessitate the filing of criminal proceedings. One would have had to be put to pinpoint the statutory authority for such a transformation. It is to be borne in mind that in recovering such civil liability ex delicto, the same has perforce to be determined in the criminal action, rooted as it is in the courts pronouncement of the guilt or the innocence of the accused. This is but to render fealty to the intendment of Article 100 of the Revised Penal Code which provides that every person criminally liable for a felony is also civilly liable. In such cases, extinction of the criminal action due to death of the accused pending appeal inevitably signifies the concomitant extinction of the civil liability. Mors Omnia Solvi. Death dissolves all things. (See People vs. Bayotas, 55 SCAD 140, 236 SCRA 239).

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In a nutshell, what is contemplated in Article 30 of the Civil Code is the institution of a separate civil action that does not draw its life from a criminal proceeding. Surely, it will take more than just a summary judicial pronouncement to authorize the conversion of said civil action to an independent one such as that contemplated under Article 30, for the rule is that, the civil action for recovery of civil liability ex delicto cannot be treated as a separate civil action under Article 30 of the Civil Code. For, to do so would effect the reopening of the criminal action already extinguished. Doctrine in Bayotas reiterated. What was said in Bayotas was that the death of the accused extinguished the criminal liability of the accused and the civil liability arising from the crime charged as a felony. It was reiterated in Mansion Biscuit Corp., et al. vs. CA, et al., G.R. No. 94713, November 23, 1995, 65 SCAD 604. Facts: Sometime in 1981, Ty Teck Suan, as President of Edward Ty Brothers Corporation ordered numerous cartons of nutria-wafer biscuits from Mansion Biscuit Corporation. Checks were paid, but the same were dishonored when presented for payment. Ty and Siy Gin, a co-signer of the checks were sued for violation of B.P. Blg. 22. Ty was convicted, but on appeal, he died. One basic issue was whether the civil liability can be enforced against Tys heirs. Held: No. The civil liability for non-payment of the nutria-wafer biscuits delivered by Mansion Biscuit to Edward Ty Brothers Corporation cannot be enforced against the private respondents because the said civil liability was not the personal liability of Ty Teck Suan to Mansion Biscuit Corp. Rather, it was the contractual liability of Edward Ty Brothers Corp., of which Ty Teck Suan was president, to Mansion Biscuit Corp. This is borne out by the records of the case as it reveal that the checks were issued in payment of the cartons of nutria-wafer biscuits purchased from Mansion Biscuit Corp., represented by Ang Cho Hong, president thereof, by Edward Ty Brothers Corp. thru said Ty Teck Suan. Moreover, petitioner himself admitted that the contract was executed by and between Edward Ty Brothers Corp. and Mansion Biscuit Corp.

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It is quite obvious therefore that Ty Teck Suan did not purchase the biscuits for himself but for the Corporation. The issue of the civil liability of Edward Ty Brothers Corp. to Mansion Biscuit Corp. arising from the contract of purchase and sale between them could not have been and was not litigated and resolved in the criminal case inasmuch as they were not parties thereto. A separate civil action must be instituted by Mansion Biscuit Corp. against Edward Ty Bros. Corp. to enforce the contract between them. Even if the liability were tortious, the same must be addressed still against Edward Ty Bros. Corp. for the established facts show that the postdated checks were issued by the accused not in payment of his personal obligations but of the corporations. Moreover, the fraud allegedly committed by the accused was merely incidental to the contractual obligation, not an independent act which could serve as a source of obligation. The law speaks of a civil action arising from the act or omission complained of. It does not refer to a civil action which is based on other sources of obligations like contracts, quasi-contracts, delicts and quasi-delicts. Article 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. This article refers to a civil action which is no longer based on the criminal liability of the defendant, but on an obligation arising from other sources, like law, contracts, quasi-contracts and quasidelicts. (Art. 1157, NCC). Under the law, irrespective of the result of the criminal prosecution, an independent civil action could still be filed. The reason for this is that the basis of the civil action is no longer the criminal liability of the defendant, but another source, may be a quasi-delict or tort. The rule in Article 31 emphasizes further the individuality of the civil action arising from a crime and that from a quasi-delict under Article 2177. The reason is that the evidence in the criminal case may not be sufficient for a civil liability, where mere preponderance of evidence is sufficient. Moreover, the basis of liability is subsidiary to the criminal punishment; while in culpa aquiliana, the liability is primary.

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Application of Article 31. An example of a case falling under Article 31 is a civil action to recover the proceeds of sale of goods covered by a trust receipt. Such civil action can proceed independently of the criminal action for violation of the trust receipt law. (South City Homes, Inc. vs. BA Finance, G.R. No. 135462, 7 December 2001; Prudential Bank vs. NLRC, 321 Phil. 798 [1995]; Prudential Bank vs. Intermediate Appellate Court, G.R. No. 74886, 8 December 1992, 216 SCRA 257). In such case, the validity of the contract, on which the civil action is based, is not at issue. What is at issue is the violation of an obligation arising from a valid contract the trust receipt. However, when the civil action is based on a purported contract that is assailed as illegal per se, as when the execution of the contract is alleged to violate the Anti-Graft and Corrupt Practices Act, Article 31 does not apply. In such a situation, the contract if proven illegal cannot create any valid obligation that can be the basis of a cause of action in a civil case. Under Article 1409 of the Civil Code, a contract whose cause, object or purpose is contrary to law, or a contract that is expressly prohibited or declared void by law, is void from the very beginning. No party to such void contract can claim any right under such contract or enforce any of its provisions. Under Section 3(g) of the Anti-Graft and Corrupt Practices Act, entering into a contract that is manifestly and grossly disadvantageous to the government is declared to be unlawful. If the act of entering into the contract is assailed as a crime in itself, then the issue of whether the contract is illegal must be first resolved before any civil action based on the contract can proceed. Only the Sandiganbayan has the jurisdiction to decide whether the act of entering into such contract is a crime, where the salary grade of one of the accused is grade 27 or higher, as in Criminal Cases Nos. 1688916900 filed with the Sandiganbayan. Article 31 speaks of a civil action based on an obligation not arising from the act x x x complained of as a felony. This clearly means that the obligation must arise from an act not constituting a crime. In the instant case, the act purporting to create the obligation is assailed as a crime in itself. That act, which is prohibited by law, is the entering into dredging contacts that are manifestly and grossly disadvantageous to the government. A contract executed against the provisions of prohibitory laws is void. If the dredging contracts are declared illegal, then no valid obligation can arise from such con-

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tracts. Consequently, no civil action based on such contracts can proceed independently of the criminal action. In contrast, where the civil action is based on a contract that can remain valid even if its violation may constitute a crime, the civil action can proceed independently. Thus, in estafa thru violation of the trust receipt law, the violation of the trust receipt constitutes a crime. However, the trust receipt itself remains valid, allowing a civil action based on the trust receipt to proceed independently of the criminal case. Clearly, NICs civil case before the Malabon trial court does not fall under Article 31 of the Civil Code. This calls then for the application of the second paragraph of Section 2 of Rule 111 which states that if the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits. Consequently, the civil case for collection pending in the Malabon trial court must be suspended until after the termination of the criminal cases filed with the Sandiganbayan. The suspension of the civil case for collection of sum of money will avoid the possibility of conflicting decisions between the Sandiganbayan and the Malabon trial court on the validity of NICs dredging contracts. If the Sandiganbayan declares the dredging contracts illegal and void ab initio, and such declaration becomes final, the NICs civil case for collection of sum of money will have no legal leg to stand on. However, if the Sandiganbayan finds the dredging contracts valid, then NICs collection case before the Malabon trial court can then proceed to trial. (Republic vs. CA, et al., G.R. No. 116463, June 30, 2003). Article 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) (2) Freedom of religion; Freedom of speech;

(3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention;

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(5)

Freedom of suffrage;

(6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private property is taken for public use; (8) The right to the equal protection of the laws;

(9) The right to be secure in ones person, house, papers and effects against unreasonable searches and seizures; (10) The liberty of abode and of changing the same; (11) The privacy of communication and correspondence; (12) The right to become a member of associations or societies for purposes not contrary to law; (13) The right to take part in a peaceable assembly to petition the Government for redress of grievances; (14) The right to be free from involuntary servitude in any form; (15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against ones self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendants act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil

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action shall proceed independently of any criminal prosecution (if the latter be instituted) and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. Article 32 of the New Civil Code enumerates basic constitutional rights of citizens. Violation of the same may give rise to criminal and civil liability. In fact, even if the act that violates this Article does not amount to a crime, still a person may be held civilly liable. Such civil action shall be proved only by preponderance of evidence. Case: Aberca, et al. vs. Ver, et al. G.R. No. L-69866, April 15, 1988 Facts: Several persons were arrested and detained without charges during the period of martial law. When they were released by President Aquino, they filed a suit for damages based on Article 32, NCC. Can respondents be held liable for damages? Held: The purpose of Article 32 of the Civil Code is to provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear. No man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield to the law of force rather than the force of law, it is to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment to democratic principles and to the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the community. Democracy cannot be a reign of progress, of liberty, of justice, unless the law is respected by him who makes it and by him for whom it is

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made. Now this respect implies a maximum of faith, a minimum of idealism. On going to the bottom of the matter, we discover that life demands of us a certain residium of sentiment which is not derived from reason, but which reason nevertheless controls. Article 32 of the Civil Code which renders any public officer or employee or any public individual liable for damages for violating the Constitutional rights and liberties of another, as enumerated therein, does not exempt military officers and officials from responsibility. Only judges are excluded from liability under said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statutes. Military authorities are not restrained from pursuing their assigned task or carrying out their mission with vigor. Theirs is the duty to protect the Republic from its enemies, whether of the left or of the right, or from within or without, seeking to destroy or subvert our democratic institutions and imperil their very existence. But when they carry out this task and mission, they must observe the constitutional and legal limitations; otherwise, the very fabric of our faith will start to unravel. In the battle of competing ideologies, the struggle for the mind is just as vital as the struggle of arms. The linchpin in that psychological struggle is faith in the rule of law. Once that faith is lost or compromised, the struggle may well be abandoned. The suspension of the privilege of the writ of habeas corpus does not destroy petitioners right and cause of action for damages for illegal arrest and detention and other violations of their constitutional rights. The suspension does not validate an otherwise illegal arrest or detention. What is suspended is merely the right of the individual to seek release from detention through the writ of habeas corpus as a speedy means of obtaining his liberty. The civil action that may be filed in the above-cited provision of Article 32, NCC must have been reserved in view of Rule 111, Section 1, of the Rules of Court which provides that: When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and the damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Phil-

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ippines arising from the same act or omission of the accused. xxx xxx x x x.

The rule is founded on the principle that the filing of the criminal carries with it the filing of the civil. If no reservation, waiver, or prior institution of the civil action is made, the plaintiff will then prosecute the civil aspect of the act of the accused in the same criminal proceedings. Inspite of the fact that the complainant can file a separate civil action, he cannot, however, recover damages twice for the same act or omission. (Rule 111, Sec. 1, par. 5, Rules of Court; Article 2177, NCC). Case: Padua, et al. vs. Robles, et al. G.R. No. L-40486, August 29, 1975 Facts: The negligence of the taxi driver resulted in the death of a boy for which he was prosecuted criminally. Civil action was filed against the driver and the owner of the car. In the civil case, the owner was not held liable while the driver was found to be negligent; hence, he was held liable. In the criminal case, the driver was convicted, but the court did not fix the sum due; it merely made reference to his liability in the civil case. During the execution period, the judgment was not satisfied because of the insolvency of the driver; hence, the plaintiffs sued the employer to enforce his subsidiary liability under the Revised Penal Code. The owner interposed res judicata. Can the employer be held liable? Held: Yes. By making reference to the award in the civil case, the court has made clear its intention to adopt the same adjudication and award in the criminal case. Liability for unreasonable search and seizure; moral and exemplary damages. In MHP Garments, Inc., et al. vs. CA, et al., G.R. No. 86720, September 2, 1994, 55 SCAD 129, it was said that:

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The constitutional protection of our people against unreasonable search and seizure is not merely a pleasing platitude. It vouchsafes our right to privacy and dignity against undesirable intrusions committed by any public officer or private individual. An infringement of this right justifies an award for damages. The facts would show that on October 25, 1983, at about 10:30 a.m., petitioner de Guzman, Captain Renato M. Penafiel, and two (2) other constabulary men of the Reaction Force Battalion, Sikatuna Village, Diliman, Quezon City, went to the stores of respondents at the Marikina Public Market. Without any warrant, they seized the boy and girl scouts pants, dresses, and suits on display at respondents stalls. The seizure caused a commotion and embarrassed private respondents. Receipts were issued for the seized items. The items were then turned over by Captain Penafiel to petitioner Corporation for safekeeping. A criminal complaint for unfair competition was filed, but it was later on dismissed after petitioner de Guzman exacted P3,000.00 from respondent Lugatiman in order that the case may be dropped; the things seized were ordered returned; not all were returned. An action for sum of money with damages was filed holding the petitioners liable. On appeal, the CA affirmed the decision. One basic issue raised was whether petitioners can be liable for damages. It was petitioners contention that their only participation was to report the alleged illegal activity of the respondents. Held: Petitioners are liable. In the earlier case of Lim vs. Ponce de Leon, 66 SCRA 299 (1975), it has been held that a public officer or employee or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages. x x x (a) The right to be secure in ones person, house, papers and effects against unreasonable searches and seizures. The indemnity shall include moral damages. Exemplary damages may also be adjudged.

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Article 2219 also provides that moral damages may be recovered in cases of illegal search. The SC further said: The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat the main pupose of Article 32 which is the effective protection of individual rights. Public officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties. Precisely, the object of the Article is to put an end to official abuse by plea of the good faith. In the United States this remedy is in the nature of a tort. In the subsequent case of Aberca vs. Ver, 160 SCRA 590 (1988), the Court En Banc explained the liability of persons indirectly responsible, viz.: The decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or person directly or indirectly responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e., the one directly responsible) who must answer for damages under Article 32; the person responsible has also to answer for the damages or injury caused to the aggrieved party. xxx xxx xxx

While it would certainly be too naive to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression, joint tortfeasors. xxx xxx xxx

Neither can it be said that only those shown to have participated directly should be held liable. Article 32 of the Civil Code encompasses within the ambit of its provisions those directly, as well as indirectly responsible for its violations. (emphasis supplied)

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Applying the aforecited provisions and leading cases, the respondent court correctly granted damages to private respondents. Petitioners were indirectly involved in transgressing the right of private respondents against unreasonable search and seizure. Needless to state, the wantonness of the wrongful seizure justifies the award of exemplary damages. (Art. 2229, New Civil Code). Responsibility under Article 32, when demandable from a judge. As a rule, the responsibility under Article 32 of the Civil Code is not demandable from a judge. This is based on the principle of presumption of good faith in the performance of ones duties and functions. There are, however, exceptions where a judge may be held liable, as governed by the Revised Penal Code, like: (1) Art. 204. Knowingly rendering unjust judgment. Any judge who shall knowingly render an unjust judgment in any case submitted to him for decision, shall be punished by prision mayor, and perpetual absolute disqualification. (2) Art. 205. Judgment rendered through negligence. Any judge who, by reason of inexcusable negligence or ignorance, shall render a manifestly unjust judgment in any case submitted to him for decision shall be punished by arresto mayor and temporary special disqualification. (3) Art. 206. Unjust interlocutory order. Any judge who shall knowingly render an unjust interlocutory order or decree shall suffer the penalty of arresto mayor in its minimum period and suspension; but if he shall have acted by reason of inexcusable negligence or ignorance and the interlocutory order or decree be manifestly unjust, the penalty shall be suspension. (4) Art. 207. Malicious delay in the administration of justice. The penalty of prision correccional in its minimum period shall be imposed upon any judge guilty of malicious delay in the administration of justice. Article 33. In cases of defamation, fraud and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, shall require only a preponderance of evidence.

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Reason for the law. The right to file an independent civil action is granted by the law. It was explained thus: The underlying purpose of the principles under consideration is to allow the citizen to enforce his rights in a private action brought by him, regardless of the action of the State attorney. It is not conducive to civic spirit and to individual self-reliance and initiative to habituate the citizens to depend upon the government for the vindication of their own private rights. It is true that in many of the cases referred to in the provisions cited, a criminal prosecution is proper, but it should be remembered that while the State is the complainant in the criminal case, the injured individual is the one most concerned because it is he who has suffered directly. He should be permitted to demand reparation for the wrong which peculiarly affects him. In England and the United States, the individual may bring an action in tort for assault and battery, false imprisonment, libel and slander, deceit, trespass, malicious prosecution, and other acts which also fall within the criminal statutes. This independent civil action is in keeping with the spirit of individual initiative and the intense awareness of ones individual rights in those countries. Something of the same sense of self-reliance in the enforcement of ones rights is sought to be nurtured by the Project of Civil Code. Freedom and Civil Courage thrive best in such an atmosphere, rather than under paternalistic system of law. (Report of the Code Commission, pages 46-47). Concept of physical injuries. The term physical injuries is used in the foregoing article in its generic sense and has been interpreted to include death. It was held in Carandang vs. Santiago and Valenton, 97 Phil. 94, that the term physical injuries should be understood to mean bodily injury, not the crime of physical injuries. In Marcelo Jervoso, et al. vs. People and CA, G.R. No. 89306, September 13, 1990, the Supreme Court also said that the term physical injuries in Article 33 is used in a generic sense. It includes

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consummated, frustrated or attempted homicide. (Madeja vs. Caro, 126 SCRA 293). No need to reserve independent civil action. While Article 33 of the New Civil Code clearly provides that an action for damages in case of fraud, physical injuries and defamation may proceed independently of the criminal prosecution, the Rules of Court, however, require that the action be reserved. Rule 111, Section 1, of the Rules of Court provides: Section 1. Institution of criminal and civil actions. (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged is deemed instituted with the criminal action, unless the offended party waives the civil action or reserves his right to institute it separately or institutes the civil action prior to the criminal action. The Reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. Section 2. Independent civil action. In the cases provided for in Article 31, 32, 33, 34 and 2177 of the Civil Code of the Philippines, an independent civil action entirely separate and distinct from the criminal action, may be brought by the injured party during the pendency of the criminal case, provided the right is reserved as required in the preceding section. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. Section 3. When civil action may proceed independently. In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action. The foundation of Article 33, NCC, is Article 100 of the Revised Penal Code, which provides that every person who is criminally li-

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able shall also be civilly liable. There is no more need to reserve the right to prosecute the civil action under Articles 32, 33, 34 and 2176 of the Civil Code, while the Rules of Court require the reservation, what is reserved is the right to file a civil action to enforce the civil liability arising from the crime charged as a felony, otherwise, it is deemed filed with the criminal action. Purpose of reservation of civil action. Case: Yakult Phils., et al. vs. CA G.R. No. 91856, October 5, 1990 Facts: Roy Camaso was sideswiped by a motorcycle owned by Yakult Phils. and driven by Larry Salvado resulting in physical injuries. He was charged with reckless imprudence resulting to physical injuries on January 6, 1983. On October 19, 1984, a complaint for damages was filed against Salvado and Yakult, where they were held solidarily liable. It was contended by Yakult that the civil action could not be filed independently of the criminal action because there was no reservation of the right to file it. Held: Although the separate civil action was filed without previous reservation in the criminal case, nevertheless, since it was instituted before the prosecution presented evidence in the criminal action, and the judge handling the criminal case was informed thereof, then the actual filing of the civil action is even far better than a compliance with the requirement of an express reservation that should be made by the offended party before the prosecution presents its evidence. The purpose of this rule requiring reservation is to prevent the offended party from recovering damages twice for the same act or omission. Independent civil action; when deemed not barred despite intervention by private prosecutor. The 1986 case of Zenaida Cruz Reyes vs. Hon. Judge Alicia Sempio-Diy, et al., L-71914, January 29, 1986, 141 SCRA 208, gave

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the Supreme Court a chance to reiterate its ruling in Meneses vs. Luat, 12 SCRA 454 that an offended party is not deemed to have waived his right to file an independent civil action for damages by the mere appearance of a private prosecutor in the criminal action which is suddenly terminated by a conviction of the accused on a plea of guilty upon arraignment. Cristina Malicsi was charged with the crime of intriguing against honor before the Metropolitan Trial Court. A private prosecutor entered his appearance on behalf of Zenaida Cruz Reyes, the offended party. But Malicsi pleaded guilty when arraigned and was promptly convicted and sentenced to pay a fine of P50.00. Consequently, Reyes was unable to present evidence to prove damages. Nor was she able to reserve her right to file a separate civil action for damages. She subsequently filed a civil suit for damages against Malicsi and her husband, arising from the defamatory words uttered by Cristina Malicsi which was the subject of the criminal case. The Regional Trial Court, relying on Roa vs. De la Cruz, 107 Phil. 8, dismissed the civil action for damages on the ground that the decision in the criminal action, which did not award any damages, barred the civil action on res judicata. On appeal, the Supreme Court set aside the order of dismissal, holding that it was not the Roa case but Meneses vs. Luat, supra, which controlled. In Roa, a full-blown hearing participated in by a private prosecutor resulted in a judgment of conviction for slight slander with no damages awarded owing to the failure of the offended party to present evidence to support her claim for damages. The court said that she had only herself or her counsel to blame and that the decision was res judicata on her subsequent civil action for damages. On the other hand, in Meneses, the criminal case did not proceed to trial as the accused pleaded guilty when arraigned as in the case at bar. Hence, it was there held that the mere appearance of private counsel in representation of the offended party did not constitute such active intervention as could only import an intention to press a claim for damages in the same action. Because the accused had pleaded guilty upon arraignment, there was no chance for the aggrieved party to present evidence in support of her claim for damages and to enter a reservation in the record to file a separate civil action. In Reyes vs. Sempio-Diy, supra, the High Court also held that the failure of petitioner to make a reservation to file a separate civil action did not foreclose her right to file said separate claim for damages, for under Art. 33 of the Civil Code, there is no requirement

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that as a condition to the filing of a separate civil action a reservation be first made in the criminal case. Such reservation is not necessary. Outcome of criminal case is inconsequential. The outcome or result of the criminal case, whether an acquittal or conviction, is inconsequential and will be of no moment in a civil action for damages based on Article 33 of the Civil Code. (Diong Bi Chu vs. CA, 192 SCRA 554 [1990]). It must, however, be observed that the civil liability may still be pursued in a separate civil action but it must be predicated on a source of obligation other than a delict, except when by statutory provision an independent civil action is authorized such as, to exemplify, in the instance enumerated in Article 33 of the Civil Code. Hence, as said in People vs. Bayotas, the claim for civil liability survives notwithstanding the death of the accused, if the same may also be predicated on a source of obligation other than a delict. It was emphasized in Bayotas that: Conversely, such civil liability is not extinguished and survives the deceased offender where it also arises simultaneously from, or exists as a consequence, or by reason of a contract, as in Torrijos; or from law, as stated in Torrijos and in the concurring opinion in Sendaydiego; such as in reference to the Civil Code; or from a quasicontract; or is authorized by law to be pursued in an independent civil action, as in Belamala. Of course, without these exceptions, it would be unfair and inequitable to deprive the victim of his property or recovery of damages therefor, as would have been the fate of the second vendee in Torrijos, or the provincial government in Sendaydiego. Article 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. A person is being held-up. A police officer refused to help him despite pleas for help or protection, as a consequence of which the personal belongings of the person were taken. Such police officer is

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liable primarily for damages and the city or municipality is liable subsidiarily. If the act of a police officer constitutes a crime, any civil action that may be filed shall be independent of any criminal proceedings. Preponderance of evidence shall be sufficient to support a decision in such action. The reason why a police officer is liable in case he refuses to give help or protection to anyone whose life or property is in danger is that he is usually the person to whom people turn to for protection. To the people, the policeman is the external symbol of the governments power and authority. (See Jarencio on Torts and Damages, 1979 ed., p. 208). Article 35. When a person, claiming to be injured by a criminal offense, charges another with the same, for which no independent civil action is granted in this Code or any special law, but the justice of the peace finds no reasonable grounds to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complainant may bring a civil action for damages against the alleged offender. Such civil action may be supported by a preponderance of evidence. Upon the defendants motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the complaint should be found to be malicious. If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall be suspended until the termination of the criminal proceedings. Article 36. Prejudicial questions, which must be decided before any criminal prosecution may be instituted or may proceed, shall be governed by the Rules of Court which the Supreme Court shall promulgate and which shall not be in conflict with the provisions of this Code. Concept of prejudicial question. A prejudicial question is a question which arises in a case, the resolution of which is a logical antecedent of the issue involved in said case, and the cognizance of which pertains to another tribunal. (People vs. Aragon, 94 Phil. 357; Zapanta vs. Montesa, 4 SCRA 510;

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Jimenez vs. Averia, 22 SCRA 1380). It is a question of a purely civil character but connected in such a manner to the crime on which the criminal case is based that it is determinative of the guilt or innocence of the accused. (De Leon vs. Mabanag, 70 Phil. 202). Elements of prejudicial question. The Rules of Court provide for the elements of prejudicial question, to wit: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed. (Rule III, Sec. 7, Rules of Court). A civil case, to be considered prejudicial to a criminal action as to cause the suspension of the latter, pending its determination, must not only involve the same facts upon which the criminal prosecution would be based, but also that the resolution of the issue or issues in the civil case would necessarily be determinative of the guilt or innocence of the accused. (Mendiola vs. Macadaeg, 1 SCRA 593; Benitez vs. Concepcion, Jr., 2 SCRA 178). Action for the nullity of marriage is not a prejudicial question to a concubinage case. In Meynardo Beltran vs. People, et al., G.R. No. 137567, June 20, 2000, Meynardo filed a complaint for nullity of his marriage with his wife on the ground of psychological incapacity. The wife filed a complaint for concubinage against the husband. In the meantime, the man filed a motion to suspend the criminal case on the ground of a prejudicial question. He contended that there was a possibility that two conflicting decisions might result, where the court may declare the marriage valid and thus, dismiss the complaint and acquit the accused because of the invalidity of the marriage on the ground of psychological incapacity. The Supreme Court brushed aside such contention and Held: The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: 1. the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and 2. the resolution of such issue

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determines whether or not the criminal action may proceed. (Carlos vs. CA, 268 SCRA 25). The pendency of the case for declaration of nullity of petitioners marriage is not a prejudicial question to the concubinage case. For a civil case to be considered prejudicial to a criminal action as to cause the suspension of the latter pending the final determination of the civil case, it must appear not only that the said civil case involves the same facts upon which the criminal prosecution would be based, but also that in the resolution of the issue or issues raised in the aforesaid civil action, the guilt or innocence of the accused would necessarily be determined. Article 40 of the Family Code provides: The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. In Domingo vs. CA, 226 SCRA 572, it was said that the import of said provision is that for purposes of remarriage, the only legally acceptable basis for declaring a previous marriage an absolute nullity is a final judgment declaring such previous marriage void, whereas, for purposes other than marriage, other evidence is acceptable. The pertinent portions of said decision read: x x x Undoubtedly, one can conceive of other instances where a party might well invoke the absolute nullity of a previous marriage for purposes other than remarriage, such as in case of an action for liquidation, partition, distribution and separation of property between the erstwhile spouses, as well as an action for the custody and support of their common children and the delivery of the latters presumptive legitimes. In such cases, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void. So that in a case of concubinage, the accused need not present a final judgment declaring his marriage void for he can adduce evidence in the criminal case of nullity of his marriage other than proof of a final judgment declaring his marriage void. (See also Mercado vs. Tan, G.R. No. 137110, August 1, 2000, 337 SCRA 112).

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With regard to his argument that he could be acquitted of the charge of concubinage should his marriage be declared null and void, suffice it to state that even a subsequent pronouncement that his marriage is void from the beginning is not a defense. Analogous to this case is that of Landicho vs. Relova, 22 SCRA 731, cited in Donato vs. Luna, 160 SCRA 441 where it was held: x x x Assuming that the first marriage was null and void on the ground alleged by petitioner, that fact would not be material to the outcome of the criminal case. Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration of nullity of the first marriage, the accused assumes the risk of being prosecuted for bigamy. The parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists for all intents and purposes. Therefore, he who cohabits with a woman not his wife before the judicial declaration of nullity of the marriage assumes the risk of being prosecuted for concubinage. The clear cut rule therefore is that the pendency of a civil action for nullity of marriage does not pose a prejudicial question in a criminal case for concubinage. Case: Zapanta vs. Montesa G.R. No. L-14534, February 28, 1962 Facts: While the marriage between A and B was still subsisting, A got married to C. B filed a criminal action for bigamy against A. In the meantime, A filed an action for annulment of marriage on the grounds of force, intimidation, fraud, etc. He further moved for the suspension of the criminal action on the ground of prejudicial question. Held: There was really a prejudicial question, as the resolution of the

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action for annulment of marriage with B was determinative of the guilt or innocence of the accused in the criminal case. Case: People vs. Aragon 94 Phil. 357 Facts: A forced B to marry him. B filed an action for annulment of marriage on the ground of force or intimidation. During the pendency of the annulment case, A married C; hence, A was charged with bigamy. A filed a motion to suspend the criminal action on the ground of prejudicial question. Held: The motion is not proper. If the cause for the invalidity of the marriage is due to his own malfeasance, he cannot avail of it to defeat the criminal case. He who comes to court must do so with clean hands. In this case, it was A who forced B to marry him; hence, he created the cause for the invalidity of the marriage. Case: Landicho vs. Relova 22 SCRA 731 Facts: A and B are married. During the existence of their marriage, A married C. B filed a complaint for bigamy against A. C, in the meantime, filed an action for annulment of marriage. In his answer, A filed a third-party claim for annulment of marriage against B and moved for the suspension of the criminal action on the ground of prejudicial question. Held: A should not decide the validity of the marriage. Let the court decide it. If it is not declared void or annulled, the presumption is that it is valid. Anyone who contracts a second marriage runs the risk of being prosecuted for bigamy.

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Case: Donato vs. Luna G.R. No. 53642, April 15, 1988 Facts: X and Y are married. During the existence of the first marriage, X married Z. A bigamy case was filed by the second wife. In the meantime, Z filed an action for annulment of marriage on the ground of fraud. X filed an answer contending that the marriage is void because it was solemnized without a marriage license and that his consent was obtained by force and intimidation, and at the same time moved for the suspension of the criminal action on the ground of prejudicial question. Held: A prejudicial question usually comes into play in a situation where a civil action and a criminal action may proceed, because however the issue raised in the civil case is resolved would be determinative juris et jure of the guilt or innocence of the accused in the criminal case. The case here does not show a prejudicial question. It was the second wife who filed the action on the ground of deceit. The reliance on Landicho vs. Relova, 22 SCRA 731, is not proper. The mere fact that there are actions to annul the marriages entered into by the accused in a bigamy case does not mean that prejudicial questions are automatically raised in civil actions as to warrant the suspension of the criminal case. In order that the case of annulment of marriage be considered a prejudicial question to the bigamy case against the accused, it must be shown that the petitioners consent to such marriage was obtained by means of duress, force and intimidation so that his act in the second marriage was involuntary and cannot be the basis of his conviction for the crime of bigamy. The situation in the present case is markedly different. At the time the petitioner was indicted for bigamy on February 27, 1963, the fact that two marriages had been contracted appeared to be indisputable. And it was the second spouse, not the petitioner, who filed the action for nullity on the ground of force, threats and intimidation. And it was only on June 15, 1963 that petitioner, as defendant in the civil action, filed a third-party complaint against the first spouse, alleging that his marriage with her

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should be declared null and void on the ground of force, threats and intimidation. Assuming that the first marriage was null and void on the ground alleged by petitioner, such fact would not be material to the outcome of the criminal case. Parties to the marriage should not be permitted to judge for themselves its nullity for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration, the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy. The lower court therefore has not abused, much less gravely abused, its discretion in failing to suspend the hearing as sought by petitioner. Case: Quiambao vs. Osorio G.R. No. L-48157, March 16, 1988 Facts: In a forcible entry case, it was alleged that the private respondents are the legitimate possessors of a parcel of land by virtue of the agreement to sell executed in their favor by the former Land Tenure Administration, now the Department of Agrarian Reform. Allegedly, petitioners surreptitiously and with force and intimidation entered the premises. A motion to dismiss was filed but it was denied. In their answer, they alleged that respondents prior possession has already been cancelled. They alleged the existence of an administrative case before the Land Tenure Administration and contended that the administrative case was determinative of the issue in the ejectment case. Held: The doctrine of prejudicial question comes into play generally in a situation where civil and criminal actions are both pending and the issues involved in both cases are similar or so closely related that an issue must be preemptively resolved in the civil case before the criminal action can proceed. Technically, prejudicial question does not exist in this case. But because of the intimate correlation between the two cases, stemming from the fact that the right of private respondents to eject petitioner

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from the disputed property depends primarily on the resolution of the pending administrative case. For while respondents may have prior possession, the same has been terminated, suspended or cancelled. Whether or not, private respondents can continue to exercise their right of possession is but a necessary logical consequence of the issue involved in the pending administrative case assailing the validity of the cancellation, and the subsequent award of the disputed portion to petitioners. If the cancellation is voided, then private respondents would have the right to eject petitioner from the disputed area. (See Fortich-Celdran, et al. vs. Celdran, et al., 19 SCRA 502). Prejudicial question; its concept. Case: Fortich-Celdran, et al. vs. Celdran, et al. 19 SCRA 502 Facts: This is a suit for annulment of an extra-judicial partition of properties and for accounting filed with the CFI of Cebu, on February 3, 1954. Plaintiffs were the children of the deceased, Pedro Celdran, Sr., from the first marriage. Defendants were Josefa Celdran, spouse of the deceased by the second marriage, and the seven children. When the defendants answered on May 28, 1954, Ignacio Celdran withdrew as one of the plaintiffs, alleging that it was falsified. On March 6, 1959, the parties had an amicable settlement, except Ignacio Celdran, recognizing as valid the above extrajudicial partition. The court held that the extrajudicial partition is valid for being satisfied by Ignacio, upon receipt of P10,000.00 plus two (2) residential lots. Ignacio appealed to the CA. On March 22, 1963, at the instance of Ignacio, an information for falsification of public documents was filed by the City Fiscal of Ozamis in the CFI, Ozamis. Accused were the children of Pedro, Sr. by the first marriage. Issue: May the proceedings in the criminal case on the ground of prejudicial question be suspended, for the reason that the alleged falsifi-

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cation of document of withdrawal (of Ignacio) is at issue in the Civil case pending in the Court of Appeals? Held: The High Court held that the action poses a prejudicial question to the criminal prosecution for alleged falsification. The authenticity of the document (motion to withdraw) was assailed in the same civil action. The resolution in the civil case will, in a sense, be determinative of the guilt or innocence of the accused in the criminal suit pending in another tribunal. As such, it is a prejudicial question which should be first decided before the prosecution can proceed in the criminal case. Prejudicial question is one that arises in a case the resolution of which is a logical antecedent to the issue involved therein, and the cognizance of which pertains to another tribunal; it is determinative of the case before the court and jurisdiction to pass upon the same is lodged in another tribunal. The decision of the Court of Appeals was affirmed. The administrative case filed by Ignacio Celdran against S. Catane for forgery of document was held in abeyance by the High Court. (See also Yap vs. Paras, et al., G.R. No. 101236, January 30, 1992). Test to determine existence of prejudicial question. In Juliana Yap vs. Martin Paras and Judge Alfredo Barcelona, Sr., G.R. No. 101236, January 30, 1992, the facts show that on October 31, 1971, Paras sold to Yap his share in the intestate estate of their parents for P300.00, the sale being evidenced by a private document. On May 2, 1990, Paras sold the same to Santiago Saya-ang for P5,000.00, evidenced by a notarized deed of sale. When Yap learned of the second sale, she filed a complaint for estafa against Paras and Saya-ang. She also filed a complaint for nullification of the deed of sale with the RTC. After preliminary investigation, a case of estafa was filed with the Court. Before arraignment, the judge dismissed motu proprio the criminal case on the ground that the criminal case was a prejudicial question to a civil case, citing Ras vs. Rasul, 100 SCRA 125. A motion for reconsideration was filed, but it was denied, hence, this petition. Held: It is the issue in the civil action that is prejudicial to the continuation of the criminal action, not the criminal action that is prejudi-

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cial to the civil action. For a civil case to be considered prejudicial to a criminal action as to cause the suspension of the criminal action pending the determination of the civil action, it must appear not only that the civil case involves the same facts upon which the criminal prosecution is based, but also that the resolution of the issues raised in said civil action would be necessarily determinative of the guilt or innocence of the accused. (See also Tuanda, et al. vs. SB, et al., G.R. No. 110544, October 17, 1995, 65 SCAD 94). As to whether the court can motu proprio dismiss the criminal action, the SC said that the Rules of Court plainly say that the suspension may be made only upon petition and not at the instance of the judge alone, and it also says suspension, and not dismissal. In the Ras case, there was a motion to suspend the criminal action on the ground that the defense in the civil case (forgery of his signature in the first deed of sale) had to be threshed out first. Resolution of that question would necessarily resolve the guilt or innocence of the accused in the criminal case. By contrast, there was no motion for suspension in the case at bar; and no less importantly, the respondent judge had not been informed of the defense Paras was raising in the civil action. Judge Barcelona could not have ascertained then if the issue raised in the civil action would determine the guilt or innocence of the accused in the criminal case. It is worth remarking that not every defense raised in the civil action will raise a prejudicial question to justify suspension of the criminal action. The defense must involve an issue similar or intimately related to the same issue raised in the criminal action and its resolution should determine whether or not the latter action may proceed. An action for rescission of a contract is not prejudicial in an action based on B.P. Blg. 22. In Umali, et al. vs. IAC, et al., G.R. No. 63198, June 21, 1990, petitioners purchased a parcel of land from Sps. Edano on installment basis. By agreement, a deed of absolute sale was executed even if there was no complete payment. The checks issued as payment, however, bounced, hence, the criminal cases. In the meantime, the Sps. Edano filed a complaint for rescission and/or annulment of the sale. Petitioners moved for the suspension of the criminal cases on the ground of prejudicial question.

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Held: No. The two (2) elements of a prejudicial question are: (a) (b) The civil action involves an issue similar or intimately related to the issue raised in the criminal action; The resolution of such issue in the civil action determines whether or not the criminal action may proceed. (Sec. 5, Rule 111, Rules of Court).

The issue in the civil case for rescission and/or annulment of the sale is not determinative of the guilt or innocence of the accused; hence, there is no prejudicial question. The basis of the argument was that the respondents sold the land with misrepresentation; that it is free from all liens and encumbrances and that it is not tenanted. Partition case is a prejudicial question to a criminal case for violation of P.D. No. 772. Facts: A, B and C are the heirs of X and Y who left a parcel of land. A was able to obtain a title over the land, so B and C filed an action for declaration of nullity of the title and partition. Then, they occupied a portion of the land without As knowledge and consent; hence, they were sued for violation of P.D. No. 772, otherwise known as the AntiSquatting Law. Before they were arraigned, they moved to suspend the criminal action on the ground of prejudicial question. Rule on the motion. Held: The motion should be granted on the ground of a prejudicial question. A prejudicial question is a question in a civil case which is based on a fact distinct and separate from the crime but so intimately connected with it that its resolution is determinative of the guilt or innocence of the person accused of the crime. In the criminal case, the question is whether B and C occupied a piece of land not belonging to them but to A and against the latters will. Whether or not the land they occupied belongs to them is the issue in the civil case they previously filed for the nullity of As title

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and for partition. The resolution, therefore, of this question would necessarily be determinative of B and Cs criminal liability for squatting. In other words, whatever may be the ultimate resolution will be determinative of the guilt or innocence of B and C in the criminal case. Surely, if B and C are co-owners of the lot in question, they cannot be found guilty of squatting because they are very much entitled to the use and occupation of the land as A. Ownership is thus the pivotal question. Since this is the question in the civil case, the proceedings in the criminal case must in the meantime be suspended. (Apa, et al. vs. Fernandez, et al., G.R. No. 112381, March 20, 1995, 59 SCAD 759). In Alano vs. CA, et al., G.R. No. 111244, October 15, 1997, 89 SCAD 792, the doctrine of prejudicial question was once again reviewed. In this case there was a prosecution for estafa because the owner sold the property twice. There was also a civil action for the annulment of the second sale on the ground that it was sold to them earlier. The defense of the owner was that he never sold it before and that his signature was forged, hence, there was no second sale. Under these facts, may prejudicial question be raised to cause the suspension of the criminal proceedings? Held: Yes, the Supreme Court ruled, saying that the doctrine of prejudicial question comes into play in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because however the issue raised in the civil action is resolved would be determinative of the guilt or innocence of the accused in the criminal action. (Flordelis vs. Castillo, 58 SCRA 301; Donato vs. Luna, 16 SCRA 40). In other words, if both civil and criminal cases have similar issues or the issue in one is intimately related to the issues raised in the other, then a prejudicial question would likely exist, provided the other element or characteristic is satisfied. (Benitez vs. Concepcion, Jr., 2 SCRA 178; Ras vs. Rasul, 100 SCRA 125). It was observed, however, that the signature of the seller was admitted during the pre-trial of the criminal case. He, likewise, admitted his signatures in 23 vouchers evidencing payments. He even wrote the other party offering to refund whatever fund was paid. There was no question that a stipulation of facts by the parties in a criminal case is recognized as declaration constituting judicial

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admissions, hence, binding upon the parties and by virtue of which the prosecution dispensed with the introduction of additional evidence and the defense waived the right to contest or dispute the veracity of the statement contained in the exhibit. (People vs. Bocar, 27 SCRA 512). Accordingly, the stipulation of facts stated in the pre-trial order amounts to an admission by the petitioner resulting in the waiver of his right to present evidence as guaranteed under the Constitution, this right maybe waived expressly or impliedly. Since the suspension of the criminal case due to a prejudicial question is only a procedural matter, the same is subject to a waiver by virtue of a prior act of the accused. After all, the doctrine of waiver is made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right and without detriment to the community at large. (People vs. Donalo, 198 SCRA 130). Petitioners admission in the stipulation of facts during the pretrial of the criminal case amounts to a waiver of his defense of forgery in the civil case. Hence, there is no reason to nullify such waiver, it being not contrary to law, public order, public policy, morals, good customs or prejudicial to a third person with rights recognized by law. (Art. 6, NCC). Furthermore, it must be emphasized that the pretrial order was signed by the petitioner himself. As such, the rule that no proof need be offered as to any facts admitted at pre-trial hearing applies. (Afable, et al. vs. Ruiz, et al., 56 O.G. 3767; Permanent Concrete Products, Inc. vs. Teodoro, 26 SCRA 339; Munasque vs. CA, 139 SCRA 533). Annulment of a certificate of sale not a prejudicial question in a petition for the issuance of a writ of possession. A prejudicial question arises when one case is criminal and the other is a civil case, never if both are civil. In Spouses Vicente and Demetria Yu v. PCIB, G.R. No. 147902, March 17, 2006, the Supreme Court ruled as far from novel the issue of whether a civil case for annulment of a certificate of title is a prejudicial question to a petition for the issuance of a writ of possession. This cannot be so since the issuance of a writ of possession is a ministerial function of the court once the right of redemption has lapsed. It cannot even be enjoined even if there is a pending action for declaration of nullity of the mortgage and the foreclosure proceedings. The writ of posses-

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sion can even be issued with a prejudice to the pending annulment case. It was ruled in Palang vs. Vestil, G.R. No. 148595, July 12, 2004, 434 SCRA 139 that a complaint for annulment of extrajudicial case is a civil case and the petition for the issuance of a writ of possession is but an incident in the land registration case and therefore, no prejudicial question can arise from the existence of the two actions. In Manalo v. CA, 419 Phil. 215 (2001), it was said: At any rate, it taxes our imagination why the questions raised in Case No. 98-0868 must be considered determinative of Case No. 9011. The basic issue in the former is whether the respondent, as the purchaser in the extrajudicial foreclosure proceedings, may be compelled to have the property repurchased or resold to a mortgagors successor-in-interest (petitioner); while that in the latter is merely whether the respondent, as the purchaser in the extrajudicial foreclosure proceedings, is entitled to a writ of possession after the statutory period for redemption has expired. The two cases, assuming both are pending, can proceed separately and take their own direction independent of each other.

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Book I PERSONS
Title I CIVIL PERSONALITY
Chapter 1 General Provisions

Article 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost. (n) Concepts. (1) (2) Juridical capacity is the fitness to be the subject of legal relations. It is inherent in every natural person. Capacity to act is the power to do acts with legal effect. It may be acquired and it may also be lost. It is acquired upon the attainment of the age of majority. Person is a physical or legal being susceptible of rights and obligations or of being the subject of legal relations. Right is the power which a person has to demand from another a prestation or the power to do or not to do, or to demand something.
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(3) (4)

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Elements of a right. There are three (3) basic elements of a right. They are: (1) Subject. Rights exist in favor of persons. Every right involves two persons, one who may demand its enforcement, being consequently designated as the active subject, and the other must suffer or obey such enforcement and is therefore called the passive subject. The former has a right; the latter owes a duty. (S.R.I. 41). (2) Object. Rights are exercised over things, or services, for the satisfaction of human wants, physical or spiritual. Things and services constitute the object of rights. (S.R.I. 43). (3) Efficient cause. This is the tie that binds the subject and the object together. It produces all legal relations. It springs mainly from acts of violation. (S.R.I. 44). Illustration: A and B entered into a contract of sale over As car where they agreed to buy and sell the same for P400,000.00. A and B are the passive and active subjects. The car is the object and the price is the efficient cause. Estate of decedent is a person. The estate of a decedent is considered by law as a person, hence, it has been held in Limjoco vs. Intestate Estate of Pedro Fragante, L770, April 27, 1948, that as the estate of a decedent is in law regarded as a person, a forgery committed after the death of the man whose name purports to be signed to the instrument may be prosecuted as with intent to defraud the estate. Along the same line, it was held in Suiliong & Co. vs. Chio-Tayson, 12 Phil. 13, that it is the estate or the mass of property, rights and assets left by the decedent, instead of the heirs directly, that become vested and charged with his rights and obligations which survive after his demise. In Florendo, et al. vs. Hon. Perpetua Coloma, et al., 129 SCRA 304, the petitioners challenged the proceedings in an ejectment suit pending before the Court of Appeals after the death of the plaintiffappellant Adelaida Salidon. They were of the opinion that since there was no legal representative substituted for her after her death, the appellate court lost its jurisdiction over the case and consequently, the proceedings in the said court are null and void. The Supreme

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Court did not agree with the argument. It said that there is no dispute that an ejectment suit survives the death of a party. The supervening death of plaintiff-appellant did not extinguish her civil personality. (Republic vs. Bagtas, 6 SCRA 262; Vda. de Haberer vs. CA, 104 SCRA 534). Juridical capacity distinguished from capacity to act. The first term as defined in this article is the fitness of man to be the subject of legal relations. Capacity to act, on the other hand, is the power to do acts with juridical effect. The first is an inherent and ineffaceable attribute of man; it attaches to him by the mere fact of his being a man and is lost only through death. The second, that is capacity to act, is acquired and may be lost. The former can exist without the latter, but the existence of the latter always implies that of the former. The union of these two is the full civil capacity. (Sanchez Roman, 112-113; 1 Vaverde, 212). Article 38. Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction are mere restrictions on capacity to act, and do not exempt the incapacitated person from certain obligations, as when the latter arise from his acts or from property relations, such as easements. (32a) There are persons who have restricted capacity to act, like minors, insanes, imbeciles, deaf-mutes, prodigals, or those under civil interdiction. Such conditions merely restrict their capacity to act. They, however, have juridical capacity and are susceptible of rights and even of obligations, when the same arise from their acts or from property relations. These persons are not exempted from their obligations. Their parents or guardians may still be liable. Article 39. The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship. The consequences of these circumstances are governed in this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on account of religious belief or political opinion. A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases specified by law. (n)

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The law enumerates certain circumstances that limit or modify capacity to act of some persons. These incapacitated persons may incur liability when these obligations arise from their acts or property relations. Age. The age of majority is now 18 years. (R.A. No. 6809). As a rule, a minor may not give consent to a contract, but look at Article 1403 of the Civil Code which provides that one of the classes of unenforceable contracts is where both parties to the same are incompetent to give consent. The contract can, however, be cleansed of its defect if their parents or guardians would ratify the same. (Art. 1407, New Civil Code). Or, if one of the parties to a contract is incapable of giving consent, the contract is voidable. (Art. 1390, New Civil Code). But if the parents or guardian of said incompetent ratify the same, it is cleansed of its defect from the moment of the signing or perfection of the contract of the minor. (Art. 1396, New Civil Code). Illustration: A and B are both minors. A sold his car to B for P400,000.00. A delivered it and B paid. The contract is unenforceable, but if the parents or guardians of A and B would ratify it, then, it is cleansed of its defect from the moment of perfection of the contract; not from the ratification. A, a minor sold his car to B, a person of age. B paid A and A delivered the car to B. This contract is voidable, but it can be ratified by the parents or guardians of A. In both cases, there is restriction of capacity to act, yet the law recognizes effects of the said contracts. In Mercado and Mercado vs. Espiritu, 37 Phil. 215, minors stated that they were of legal age when they entered into a contract of sale. The truth is that they were not of age. They could not be permitted to excuse themselves from the fulfillment of their obligation. This is so because of the principle of estoppel. (Bambalan vs. Maramba and Muerong, 51 Phil. 417). In the same manner, the minor in Uy Soo Lim vs. Tan Unchuan, 38 Phil. 552, did not ask for annulment of his contract upon attainment of majority age. The Supreme Court said that

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knowing his rights, he should have promptly disaffirmed his contract after attaining the age of majority but instead, permitted the other party to continue making payments. Sickness. An insane or demented person or a deaf-mute who does not know how to read and write may not give consent to a contract. (Art. 1327[2], New Civil Code). In Standard Oil Co. vs. Codina Arenas, 19 Phil. 363, the Supreme Court agreed with the trial court that monomania of wealth does not really imply that a person is not capable of executing a contract. The Supreme Court said that in our present knowledge of the state of mental alienation, such certainly has not yet been reached as to warrant the conclusion, in a judicial decision, that he who suffers the monomania of wealth, believing himself to be very wealthy when he is not, is really insane and it is to be presumed, in the absence of a judicial declaration, that he acts under the influence of a perturbed mind, or that his mind is deranged when he executes an onerous contract. Capacity to act must be supposed to attach to a person who has not previously been declared incapable, and such capacity is presumed to continue so long as the contrary be not proved, that is, at the moment of his acting he was incapable, crazy, insane, or out of his mind. It was said that it was necessary to show that such monomania was habitual and constituted a veritable mental perturbation in the patient; that the contract executed by him was the result of such monomania and not the effect of any other cause and that monomania existed on the date when the contract was executed. Penalty. In the commission of certain offenses, accessory penalties are imposed by law, like perpetual or temporary disqualification to hold office, suspension from public office, curtailment of the right to vote or be voted for and the right to exercise a profession or calling, or even civil interdiction. Civil interdiction deprives the offender during the time of his sentence of the rights of parental authority and guardianship, either as to person or property of any ward, of marital authority, of the right to manage his property and the right to dispose of such property by any act or conveyance inter vivos. (Art. 34, Revised Penal Code). A person under civil interdiction cannot therefore make a

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donation inter vivos, but he can make a will as the latter shall take effect after death. A person under civil interdiction is subject to guardianship (Rule 93, Sec. 2, Rules of Court); he may be disinherited if he is a child or descendant, legitimate or illegitimate. (Art. 919[8], New Civil Code). It may also be a ground for separation of properties during the marriage (Art. 135, Family Code); it may cause the termination of agency. (Art. 1919, Civil Code). Prodigality. It has been held that the acts of prodigality must show a morbid state of mind and a disposition to spend, waste, and lessen the estate to such an extent as is likely to expose the family to want of support, or to deprive the compulsory heirs of their legitime. (Martinez vs. Martinez, 1 Phil. 182). Prodigals are subject to guardianship. (Rule 93, Sec. 2, Rules of Court) A spendthrift is a person who, by excessive drinking, gambling, idleness, or debauchery of any kind shall so spend, waste or lessen his estate as to expose himself or his family to want or suffering, or expose the town to charge or expense for the support of himself and his family. Alienage. Aliens cannot acquire land in the Philippines. The 1987 Constitution provides that save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain. (Sec. 7, Art. XII, 1987 Constitution). The rule cited above is not however absolute as the Constitution further provides that notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law. (Sec. 8, Art. XII, 1987 Constitution). The limitation provided by law is that if such former natural-born citizen acquires land in Metro Manila, he can do so but not exceeding 5,000 square meters. If outside, the limit is three (3) hectares. It can be acquired for all purposes. Aliens cannot practice their professions in the Philippines, as the 1987 Constitution says that the practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases pro-

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vided by law. (Sec. 14, Art. XII). They cannot also operate public utilities. (Art. XII, Sec. 11). In the case of Cheesman vs. CA, it was said that if a foreigner marries a Filipino and out of conjugal funds, a private land is acquired by them, the same cannot form part of their community of property because the foreigner is disqualified from acquiring lands in the Philippines. Note that this may be harsh, but that is the law. Dura lex sed lex. Absence. Under Article 381 of the Civil Code, when a person disappears from his domicile, his whereabouts being unknown, he is considered as absent. The court can appoint an administrator at the instance of an interested person, a relative or a friend. His continued absence can even result in the presumption of his death (Art. 390, NCC); hence, his successional rights may be opened. It must be recalled that the presumption of death is not conclusive, for he may be alive and can still dispose of his properties. In fact, under Article 389 of the Civil Code, if someone can prove that he acquired title over his properties under administration, the administration would cease. Insolvency and Trusteeship. If one has been declared insolvent, he cannot just dispose of his properties existing at the time of the commencement of the proceedings for insolvency. No payments of property or credit can be made to him. (Secs. 18 and 24, Act No. 1956). Family Relations. A husband and wife cannot donate to one another. The prohibition, extends to common-law relationship. (Art. 87, Family Code). The reason is public policy; the possibility that one may exert undue influence over the other. They cannot also, as a rule, sell to one another, except in cases where they are governed by the complete separation of property regime or when there is separation of properties during the marriage. (Art. 1490, New Civil Code). Husband and wife cannot also enter into a universal partnership of all properties. (Art. 1782, NCC). The law also declares as void marriages among relatives in the direct line, whether legitimate or illegitimate (Art. 37, Family Code); or those in the collateral line up to the fourth civil degree of consanguinity by reason of public policy. (Art. 38, Family Code).

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Art. 40

Deaf-Mute. A person who is blind or deaf or dumb cannot be a witness in a will. (Art. 820, New Civil Code). But a deaf-mute may execute a will (Art. 807, New Civil Code) or a blind person can execute a will. (Art. 808, New Civil Code). Political or religious belief. These two things do not affect capacity to act. In fact, under the 1987 Constitution, no religious test shall be required for the exercise of civil or political rights. (Art. III, Sec. 5, 1987 Constitution). The last paragraph of Article 39 of the Civil Code has been repealed by the Family Code and R.A. No. 6809. The age of majority now is 18 years. Chapter 2 Natural Persons Article 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided, it be born later with the conditions specified in the following article. (29a) Person defined. In a juridical sense, by person is meant any being, physical or moral, real or juridical and legal, susceptible of rights and obligations, or of being the subject of legal relations. (2 Sanchez Roman 110). The term person is more extensive than the term man or human being. (1 Falcon, 103) Falcon maintains that there is no difference between person and man and defines person as man and all associations formed by man. (1 Falcon 103). The term person includes entities which have no physical existence such as corporations and associations. (People vs. Com.rs. of Taxes, 23 N.Y. 242). Persons are the subject of rights and duties. Persons are the subject of rights and duties; and, as a subject of a right, the person is the object of the correlative duty, and conversely. The subject of a right has been called by Professor Holland, the person of inherence; subject of a duty, the person incidence. Entitled and bound are the terms in common use in English and for

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most purposes they are adequate. Every full citizen is a person; other human beings, namely, subjects, who are not citizens, may be persons. A person is such, not because he is human, but because rights and duties are ascribed to him. The person is the legal subject or substance of which the rights and duties are attributes. An individual human being considered as having such attributes is what lawyers call a natural person. (Pollock, First Book Jurispr. 110; Gray, Nature & Sources of Law, Ch. II). Birth determines personality. It must be noted that personality is determined by birth. Without it, there is no human being; there is no natural person fit to be the subject of legal relations. But a conceived child may be considered born for purposes favorable to it. The following laws provide for favorable situations for an unborn fetus: (1) Donations made to conceived and unborn children may be accepted by those who would legally represent them if they are already born. (Art. 742, Civil Code). Every donation inter vivos, made by a person having no children or descendants, legitimate or legitimated by a subsequent marriage, or illegitimate, may be revoked or reduced as provided in the next article, by the happening of any of these events: 1) If the donor, after the donation, should have legitimate or legitimated or illegitimate children, even though they be posthumous. xxx 3) xxx x x x. (Art. 760, New Civil Code).

(2)

The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. (Art. 854, New Civil Code).

Persons classified. Persons are of two classes, namely: (1) human beings or men, called natural persons, and (2) associations and corporations having legal existence, called juridical or artificial persons.

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Personality and capacity not identical. Personality and capacity are intimately related, but are not identical. Personality is the aptitude to be the subject of rights and of obligations. It is a product of capacity in law, a necessary derivation from its existence, and is the external manifestation of that capacity. Personality, its general and specific sense. Personality in a general sense cannot be limited, because it is the consequence of juridical capacity, which in turn is merely a consequence of human nature. On the other hand, personality, in a specific sense, or personality for specific and concrete rights, may suffer limitations because it is merely the result of capacity to act. (2 Sanchez Roman 114-117). Precautions. The purpose of this provisions is to prevent simulation of birth for hereditary or successional rights. The fraudulent intention may be attained or facilitated either when the father has died or was absent for a considerable time. (1 Manresa, 6th ed., 267). Objective sought. The law fixes the intra-uterine life of a fetus with three objects in view, namely: 1. 2. 3. to assure its existence; to facilitate and protect its free development; and to give or accord to him certain rights in law. (1 Manresa, 6th ed. 267).

It must be remembered that even an unborn fetus has rights protected by law. Attributes of nasciturus not mere expectancy. The rights attributed to nasciturus or conceived but yet unborn child is not a mere expectancy nor merely a technical term given to this juridical figure, but are rights properly called derechos en estado de pendencia. (1 Manresa, 6th ed. 271). Accordingly, the birth of a child under conditions contemplated by Article 41, does not determine those rights already existing (que ya existian de antemano), for

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they already constituted a state or condition that has declaratory effects. Thus, a letter addresses to the priest who was to baptize his child (Cesar Syquia), wherein he recognized said child as his, stating follows: Saturday, 1:30 p.m. February 14, 1931 Rev. Father, The baby due in June is mine and I should like for my name to be given to it. Cesar Syquia was held sufficient evidence and basis for an action for the compulsory acknowledgment of the child by the defendant after its birth by virtue of the provisions of Article 40 of this Civil Code. (De Jesus vs. Syquia, 58 Phil. 866). Article 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mothers womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (30a) The fetus is considered born after its complete separation from the maternal womb, that is, the cutting of the umbilical cord. It has been said that the second sentence in the law avoids an abortion of a six-month fetus from being considered as birth. If the child is already seven months, it is already well-formed and may live. It may have grown up to maturity; hence, he may now be viable. The provisions of Articles 40 and 41 of the Civil Code have cross reference to the law on succession, for under Article 1025 of the Civil Code, the law says that in order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in Article 41.

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Illustration: A executed a will instituting the fetus inside Bs womb. At the time of the childs birth, he had an intrauterine life of 8 months. In order to succeed, he must be considered born; and if he is born alive, he succeeds and he would transmit successional rights to his heirs if he should die after his birth. Note that the fetus can be considered born for purposes of the institution in the will because it is favorable to it. But the taking of the property is conditioned on his birth. Suppose the child had an intra-uterine life of 6-l/2 months or less than 7 months, he must have to live for at least 24 hours from the complete separation from the maternal womb, otherwise, if he dies within 24 hours from his complete separation from the maternal womb; then, he would not inherit and transmit successional rights to his heirs. The reason is that, he did not comply with the requirement of Article 41. The child here did not have juridical capacity. Suppose A and B are married. They have a son C, who is married to D, and they have a son E. A executed a will instituting C, but the latter predeceased his father, A. E can inherit by right of representation. Note that no less than the Constitution affords protection to the unborn, when it says that the State recognizes the sanctity of the family and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. (Art. II, Sec. 12, 1987 Constitution). Article 42. Civil personality is extinguished by death. The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will. (32a) Death defined. The cessation of life. The ceasing to exist. (Philip, Sleep & Death, Dean, med. Jur., 413).

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Civil death defined. Civil death is the state of a person who, though possessing a natural life has lost all his civil rights, and as to them, is considered as dead. A person convicted and attained of felony and sentenced to the state prison for life is, in the state of New York, in consequence of the act of 29th of March, 1799, and by virtues of the conviction and sentence of imprisonment for life, to be considered as civilly dead. (Platner vs. Sherwood, 6 Johns, Ch. [N.Y.] 118). The law refers to physical death and not presumed death. In case of presumed death, the person is merely presumed dead because of his absence. But in case of reappearance, he can recover his properties or the price thereof if they have been distributed. The second paragraph in the law recognizes the fact that some rights and obligations survive the death of a person. It must be recalled that the rights to succession are transmitted from the moment of the death of the decedent. (Art. 777, New Civil Code). Upon the moment of death, there is dissolution of the absolute community of properties and the conjugal partnership. (Arts. 99 and 126, Family Code). In case of death, there is extinguishment of parental authority, hence; substitute parental authority shall be exercised. (Arts. 214 and 220, Family Code). If a person constitutes another as an agent, the death of the principal or the agent extinguishes the agency. (Art. 1919, New Civil Code). If penalty has been imposed upon a person, his death extinguishes such penalty (Art. 89, Revised Penal Code); but this is without prejudice to the liability of the estate in case the obligation arose out of other sources of obligations. (People vs. Bayotas, supra). Inspite of the fact that the law provides that death extinguishes civil personality, it has been said that the estate of a decedent is in law regarded as a person (Limjoco vs. Intestate Estate of Pedro Fragante, L-770, April 27, 1948); that the supervening death of a person does not extinguish his civil personality. (Florendo, Jr. vs. Coloma, et al., 129 SCRA 304; Republic vs. Bagtas, 6 SCRA 262; Vda. de Haberer vs. CA, 104 SCRA 534). Article 43. If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other. (33)

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There must be a showing that there is death by positive evidence. However, it can be done by mere circumstantial evidence. In Joaquin vs. Navarro, 93 Phil. 257, where the death of the mother and her son occurred during the massacre of civilians in February 1945 and at the time when Manila was being bombarded during the war, the Supreme Court uphold the ruling of the trial court which was reversed by the Court of Appeals that, from the evidence presented the son died ahead of the mother. The law is applicable in a situation where two persons are called upon to succeed each other. Illustration: A and B, father and son, died on the same day but the exact hours of their death cannot be ascertained. Then, it is presumed that they died at the same time and there shall be no transmission of rights, one in favor of another. However, if it can be established that A died ahead of B, then, B can inherit from A, but since he is already dead, his heirs can represent him. There is a similar presumption in Rule 131, Section 3, paragraph (jj) of the Rules of Court, which provides: That except for purposes of succession when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and age of the sexes, according to the following rules: 1) 2) 3) 4) If both were under the age of 15 years, the older is presumed to have survived; If both were above the age of 60, the younger is deemed to have survived; If one is under 15 and the other above 60, the former is deemed to have survived; If both be over 15 and under 60, and the sex be different, the male is deemed to have survived; if the sex be the same, the older; If one be under 15 or over 60, and the other between those ages, the latter is deemed to have survived.

5)

Art. 44

PERSONS TITLE I CIVIL PERSONALITY

191

Chapter 3 Juridical Persons Article 44. The following are juridical persons: 1) The State and its political subdivisions;

2) Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as they have been constituted according to law; 3) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member. (35a) A juridical person is an abstract being, formed for the realization of collective purposes, to which the law has granted capacity for rights and obligations. The law classifies juridical persons into three: 1) 2) 3) the state and its political subdivisions; entities for public interests or purposes; entities for private interests or purposes. (Art. 44, New Civil Code).

A corporation is an artificial being created by operation of law having the right of succession and the powers, attributes and properties expressly authorized by law or incident to its existence. In a series of cases, the Supreme Court held that the term person in the Constitution includes corporations. (Smith, Bell & Co. vs. Natividad, 40 Phil. 136). In Barlin vs. Ramirez, et al., 7 Phil. 41; Roman Catholic Church vs. Placer, 11 Phil. 315, the Supreme Court said that the Roman Catholic Church is recognized as a juridical person. In fact, the Roman Catholic Church as a corporation sole can even acquire lands in the Philippines. Corporations may be public or private. Public corporations are those formed or organized for the government or the State. Private corporations are those formed for some private purposes, benefit, aim or end. Public corporations are intended or organized for the general good or welfare. Private corporations may also be classified into stock and non-stock. Stock corporations are those which have a capital stock

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divided into shares and are authorized to distribute to the holders of such shares dividends or allotments of the surplus on the basis of the shares held. All other private corporations are non-stock corporations. Article 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding article are governed by the laws creating or recognizing them. Private corporations are regulated by laws of general application on the subject. Partnerships and associations for private interest or purpose are governed by the provisions of this Code concerning partnerships. (36 and 37a) The law states the laws that govern juridical persons. The State is governed by the Constitution. Local government units like provinces, cities and municipalities are governed by the Local Government Code as well as the charters creating them. Private corporations or partnerships are governed by the Corporation Code and the Civil Code. Article 46. Juridical persons may acquire and possess property of all kinds, as well as incur obligations and bring civil or criminal actions, in conformity with the laws and regulations of their organizations. (38a) Juridical persons may acquire properties. They may enter into contracts. Without such capacity, they cannot fulfill or attain their aims. They may sue or be sued but they cannot be prosecuted criminally. The officers may however, be prosecuted criminally. Article 47. Upon the dissolution of corporations, institutions and other entities for public interest or purpose mentioned in No. 2 of Article 44, their property and other assets shall be disposed of in pursuance of law or the charter creating them. If nothing has been specified on this point, the property and other assets shall be applied to similar purposes for the benefit of the region, province, city or municipality which during the existence of the institution derived the principal benefits from the same. (39a)

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Article 48. The following are citizens of the Philippines: 1) Those who were citizens of the Philippines at the time of the adoption of the Constitution of the Philippines; 2) Those born in the Philippines of foreign parents who, before the adoption of said Constitution, had been elected to public office in the Philippines; 3) Those whose fathers are citizens of the Philippines;

4) Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine citizenship; 5) Those who are naturalized in accordance with law. (n)

Article 49. Naturalization and the loss and reacquisition of citizenship of the Philippines are governed by special laws. (n) Citizenship is the membership in a political community which is more or less permanent in nature. Citizenship is membership in a democratic or political community, while nationality is membership in any political community whether monarchical, autocratic or democratic. Citizenship follows the exercise of civil and political rights, while nationality does not necessarily carry with it the exercise of political rights. A person can be a citizen of one country and a national of another. There are three (3) modes of acquiring citizenship: 1) Jus Sanguinis, meaning by blood; as when a child is born of parents who are both Filipinos, wherever he may be born.
193

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Arts. 48-49

2)

Jus Soli, which means by place of birth. So that if a Filipino couple gives birth to a child in a place which adheres to the principle of jus soli, then the child is a citizen of such place, like the USA which recognizes the principle of jus soli. Naturalization, which is an artificial means or process, whether judicial or administrative, by which a state places the imprint of a native citizen wherein it adopts an alien and gives him the imprint and endowment of a citizen of that country.

3)

Whether there can be a judicial declaration that a person is a Filipino citizen, the Supreme Court in Yung Uan Chu vs. Republic, G.R. No. 34973, April 14, 1988, said No. He has to apply for naturalization and adduce evidence of his qualifications. But if a person who claims to be a Filipino is being compelled to register as an alien, his remedy is to go to court and file a petition for injunction and prove therein that he is a Filipino. (Lim vs. Dela Rosa, L-17790, March 31, 1964). On the other hand, if a person is being deported but he claims to be a Filipino and can prove it, he cannot be deported because you cannot deport a Filipino. The first group of citizens enumerated in the Constitution constitute the largest group, as they comprise those who were citizens of the Philippines on February 2, 1987, or at the time of the adoption of the 1987 Constitution. Included are the following: 1) 2) 3) 4) 5) Those who were citizens under the provisions of the Philippine Bill of 1902 and the Jones Law of 1916; Those who were naturalized as Filipinos prior to the adoption of the 1935 Constitution; Those who have been declared as Filipino citizens by final judgment; Those who had elected Philippine citizenship; Those born in the Philippines of foreign parents and had been elected to public office before the adoption of the 1935 Constitution.

Under the Jones Law of 1916 and the Philippine Bill of 1902, the following Spanish subjects became citizens of the Philippines under the conditions set forth therein:

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The Jones Law and the Philippine Bill both provided that all inhabitants of the Philippine Islands who were Spanish subjects on the 11th day of April, 1899, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed in Paris, December Tenth, 1898, and except such others as have since become citizens of some other country. Pursuant to such laws, and under the doctrine laid down in Palanca vs. Republic, 45 O.G. 5th Supp. 204, even a naturalized subject of Spain who was an inhabitant of the Philippines on April 11, 1899, was held to be a Filipino citizen and being so at the time of the adoption of the Constitution, he is also a Filipino citizen under the Constitution. In Commissioner vs. Dela Rosa, 197 SCRA 853, the Supreme Court restrained and prohibited the deportation of William Gatchalian, who was the son of Santiago Gatchalian, a Filipino citizen, because his father being a Filipino, William Gatchalian is also a Filipino. The Constitution does not make any distinction anymore, that if the father or mother of a person is a Filipino, he is also a Filipino. Such that, even if a child was born in the USA; hence, an American Citizen under American Laws, he is still a Filipino from the point of view of Philippine laws because of the principle that the Philippines is not bound by the laws and determinations of foreign countries. He cannot be considered as having dual citizenship because of the aforecited principle, for, he is only a Filipino. He can only be considered as possessing dual citizenship from the point of view of a third state. If a person is born prior to January 17, 1973, of Filipino mother, and upon reaching the age of majority, he elects Philippine citizenship, he is a Filipino citizen. This law refers to those born under the old Constitution (1935 and 1973 Constitutions). The mother must be a Filipino and the father must be a foreigner, because if the father is a Filipino, then, the rule is inapplicable. During the minority of the child, he is a foreigner, that is why, he is given the privilege or right to elect Philippine citizenship within a reasonable period of time upon reaching the age of majority. As a matter of fact, when such child elects Philippine citizenship, the effect even retroacts to the date of his birth because the Constitution says that those who elect Philippine

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citizenship in accordance with paragraph 3, Section 1 of Article III of the Constitution shall be deemed natural born citizens. (Sec. 2, Art. IV, 1987 Constitution). Election of Philippine citizenship can be expressed in a statement signed and sworn to by the party concerned before any official who is authorized to administer an oath. The statement must be filed with the nearest Local Civil Registry. The statement must be accompanied by an Oath of Allegiance to the Constitution and the Government of the Philippines. (Sec. 1, CA 625). The election of Filipino citizenship must be made within three (3) years from reaching the age of majority (Sec. of Justices Opinion, S. 1948), except if there is a justifiable reason for the delay, as when the party thought all along that he was already a Filipino. (Cuenco vs. Sec. of Justice, 5 SCRA 108). But there can be acquisition of citizenship under the doctrine of implied election by having exercised the right of suffrage when he came of age. That was a positive act of election of Philippine citizenship. In the case of In Re: Florencio Mallare, 59 SCRA 45, he participated in elections and campaigned for certain candidates. These are sufficient to show his preference for Philippine citizenship. (Opinion No. 328, S. 1940, Secretary of Justice). As said elsewhere, naturalization is a matter of privilege. It requires that certain qualifications of the applicant be met, because the right to determine the rules on admission to citizenship by naturalization is an aspect of sovereignty. Naturalization affects public interest. In Go vs. Republic, 13 SCRA 548; Republic vs. Uy Piek Tuy, 29 SCRA 75, it was held that no alien has the slightest right to naturalization unless all statutory requirements are complied with. Qualifications of an alien before he can be naturalized. An applicant for naturalization must have the following qualifications: 1) 2) 3) 4) Age. He must be at least 21 years of age at the date of the election; Residence for 10 years or more in the Philippines; Good moral character in that he should have conducted himself in an irreproachable manner during his stay; Property qualification. He must have some lucrative trade, profession or calling;

Arts. 48-49

PERSONS TITLE II CITIZENSHIP AND DOMICILE

197

5)

Education. He must be able to speak, write English or Spanish or a principal dialect. He must have enrolled his children in a recognized school in the Philippines which teaches Philippine history, civics and government.

How the 10-year residence requirement is reduced. The 10-year residence requirement for an applicant for naturalization may be reduced if: 1) 2) 3) 4) he was born in the Philippines; he is married to a Filipino; he served in the government or held an office; he has served as a teacher in a private or public school not limited to children of any nationality in any branch of education; he made a useful investment or industry in the Philippines.

5)

Disqualifications. An alien who files a petition for naturalization may be disqualified when he: 1) 2) 3) 4) 5) 6) 7) 8) is opposed to organized government; is a believer in violence as a means to expose an idea; is a polygamist or believer in polygamy; has been convicted of a crime involving moral turpitude; has an incurable disease; has not mingled socially with Filipinos or he has not embraced Filipino cultures, ideals and customs; is a citizen of a country with which the Philippines is at war during the time of such war; is a citizen or national of a country which does not grant same naturalization to Filipinos. (no reciprocity).

The declaration of the intention to file a petition for naturalization is not, however, absolute. There are exceptions, like: 1) When he was born in the Philippines and received his primary and secondary education in the Philippines;

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2) 3)

When he resided in the Philippines for 30 years; When he is the widow or child of the applicant who died before approval of the application.

If one who is not exempted from filing the required declaration of intention files an invalid declaration, he can be denaturalized. The reason is obvious. Naturalization is a matter of privilege. For the applicant who has met the 30-year residence requirement to be exempt from filing a declaration of intention, his residence must be actual residence, not legal residence. (Tan vs. Republic, 7 SCRA 526; Cua Sun Ke vs. Republic, G.R. No. 29674, April 8, 1988). Concept of derivative naturalization. It is one which says that if the husband of an alien woman is naturalized, the wife follows the Filipino citizenship of the husband provided she does not possess any of the disqualifications. (Moy Ya Lim Yao vs. Comm. of Immigration, 41 SCRA 292 [1971]). The law does not require that the woman should possess the qualifications of becoming a Filipino. If she falls under the principle, she must file a petition for cancellation of her alien certificate of registration, alleging that she is not disqualified from acquiring Philippine citizenship under Section 4 of the Naturalization Law. The petition must be accompanied by an affidavit of the petitioner and her husband that she does not belong to the group of disqualified persons and that she must file the petition with the Bureau of Immigration. Commonwealth Act No. 63 enumerates the modes by which Philippine citizenship may be lost, like: 1) 2) 3) naturalization in a foreign country; express renunciation of citizenship; subscribing to an oath of allegiance to support the constitution or laws of a foreign country.

So that, in Frivaldo vs. COMELEC, et al., G.R. No. 87193, June 23, 1989; Labo vs. COMELEC, et al., G.R. No. 86564, August 1, 1989, it was said that the mere filing of his certificate of candidacy did not restore to him his Filipino citizenship. The Supreme Court said: This country of ours, for all its difficulties and limitations, is like a jealous and possessive mother. Once re-

Art. 50

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jected, it is not quick to welcome back with eager arms its prodigal, repentant children. The returning of his loyalty must show, by express and unequivocal act, the renewal of his loyalty and love. For a Filipino who lost his Filipino citizenship to reacquire it, there must be direct act of Congress or naturalization or repatriation. Article 50. For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. (40a) Domicile is the place of a persons habitual residence. It is that place where he has his true, fixed permanent home and principal establishment, and to which place, he has, whenever he is absent, the intention of returning, and from which he has no present intention of moving. (Ong Huan Tin vs. Republic, 19 SCRA 966). There are therefore, two elements of domicile, such as (1) the fact of residing or physical presence in a fixed place; (2) the intention to remain permanently or animus manendi. The Family Code has already dispensed with the rule that the domicile of a married woman may be fixed by the husband. Under Article 69 of the Family Code, the husband and wife shall fix the family domicile and in case of disagreement, the court shall decide. But the court may exempt one spouse from living with the other: (1) if the latter should live abroad; or (2) if there are other valid and compelling reasons for the exemption. Article 69 of the Family Code abrogated the inequality between husband and wife where the husband under the old law fixed or dictated the domicile of the wife. It was a gender-based discrimination and not rationally related to the objective of family solidarity. It must be noted that in Caasi vs. C.A., 191 SCRA 229 (1990), it was ruled that a persons immigration to the U.S., with the intention to live there permanently as evidenced by his application for an immigrants visa, constitutes an abandonment of his domicile and residence in the Philippines. It was further said that the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law. The manifest purpose of this deviation from the usual conceptions of residence in law, as explained in Gallego vs. Vera, 73

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Phil. 453, is to exclude strangers or newcomers unfamiliar with the conditions and needs of the community from taking advantage of favorable circumstances existing in that community for electoral gain. In matters of domicile, a minor follows the domicile of his parents. In the case of Imelda Marcos vs. COMELEC, et al., 64 SCAD 358, 248 SCRA 300, September 18, 1995, it was said that domicile once acquired is retained until a new one is gained. Inspite of her having been born in Manila, Tacloban, Leyte was her domicile of origin by operation of law. This was not established only when she reached the age of 18 years old, but when her father brought his family back to Leyte. And, domicile is not easily lost. To successfully effect a change of domicile, one must demonstrate: (1) an actual removal or an actual change of domicile; (2) a bona fide intention of abandoning the former place of residence and establishing a new one; (3) acts which correspond with the purpose. Case: Imelda R. Marcos vs. COMELEC, et al. 248 SCRA 300, 64 SCAD 358 Facts: Imelda R. Marcos filed her certificate of candidacy for the position of Representative of the First District of Leyte stating, among others, that her residence in the place was seven (7) months. Cong. Cirilo Roy Montejo, another candidate, filed a Petition for Cancellation and Disqualification with the COMELEC contending, among others, that she failed to comply with the 1-year residence requirement under the Constitution. An order was issued by the COMELEC disqualifying Imelda and cancelling her certificate of candidacy. She filed an Amended Corrected Certificate of Candidacy, changing the seven months to since childhood. It was denied because it was filed out of time. In an en banc resolution, the COMELEC declared her as qualified to run and allowed her proclamation should it appear that shes the winner. In another resolution on the same day, it directed that the proclamation be suspended in the event that she obtained the highest number of votes; hence, she went to the Supreme Court. Issue: Whether or not Imelda Marcos was a resident of the First District of Leyte for a period of one year at the time of the election on May 9, 1995.

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Held: Yes. The Supreme Court said: While the COMELEC seems to be in agreement with the general proposition that for purposes of election law, residence is synonymous with domicile, the Resolution reveals a tendency to substitute or mistake the concept of domicile for actual residence, a conception not intended for the purpose of determining a candidates qualifications for election to the House of Representatives as required by the 1987 Constitution. As it was residence, for the purpose of meeting the qualification for an elective position, has a settled meaning in our jurisdiction. Article 50 of the Civil Code decrees that for the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is their place of habitual residence. In Ong Huan Tin vs. Republic, 19 SCRA 966; Corre vs. Corre, 100 Phil. 321, this Court took the concept of domicile to mean an individuals permanent home, a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent. Based on the foregoing, domicile includes the twin elements of the fact of residing or physical presence in a fixed place and animus manendi, or the intention of returning there permanently. Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a persons intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established, it is residence. (Uytengsu vs. Republic, 95 Phil. 890). It is thus, quite perfectly normal for an individual to have different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he

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successfully abandons his domicile in favor of another domicile of choice. In Uytengsu vs. Republic (supra), we laid this distinction quite clearly: There is a difference between domicile and residence. Residence is used to indicate a place of abode, whether permanent or temporary; domicile denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for the same purpose at anytime, but he may have numerous places of residence. His place of residence is generally his place of domicile, but it is not by any means necessarily so since no length of residence without intention of remaining will constitute domicile. For political purposes, the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile. In Nuval vs. Guray, 52 Phil. 645, the Court held that the term residence ... is synonymous with domicile which imports not only intention to reside in a fixed place, but also personal presence in that place, coupled with conduct indicative of such intention. Larena vs. Teves, 61 Phil. 36, reiterated the same doctrine in a case involving the qualifications of the respondent therein to the post of Municipal President of Dumaguete, Negros Oriental. Faypon vs. Quirino, 96 Phil. 294, held that the absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected does not constitute loss of residence. (Ujano vs. Republic, 17 SCRA 147). So settled is the concept (of domicile) in our election law that in these and other election law cases, this Court has stated that the mere absence of an individual from his permanent residence without the intention to abandon it does not result in a loss or change of domicile. The deliberations of the 1987 Constitution on the residence qualification for certain elective positions have placed beyond doubt the principle that when the Constitution speaks of residence in election law, it actually means only domicile.

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xxx

xxx

xxx

On the matter of Imeldas domicile, the Supreme Court had this to say: In support of its asseveration that petitioners domicile could not possibly be in the First District of Leyte, the Second Division of the COMELEC, in its assailed Resolution of April 24, 1995, maintains that except for the time when (petitioner) studied and worked for some years after graduation in Tacloban City, she continuously lived in Manila. The Resolution additionally cites certain facts as indicative of the fact that petitioners domicile ought to be any place where she lived in the last few decades except Tacloban, Leyte. First, according to the Resolution, petitioner, in 1959, resided in San Juan, Metro Manila where she was also a registered voter. Then, in 1965, following the election of her husband to the Philippine presidency, she lived in San Miguel, Manila, where she registered as a voter in 1978 and thereafter, she served as a member of the Batasang Pambansa and Governor of Metro Manila. She could not, have served these positions if she had not been a resident of Metro Manila, the COMELEC stressed. Here is where the confusion lies. We have stated, many times in the past, that an individual does not lose his domicile even if he has lived and maintained residences in different places. Residence, it bears repeating, implies a factual relationship to a given place for various purposes. The absence from legal residence or domicile to pursue a profession, to study or to do other things of a temporary or semi-permanent nature does not constitute loss of residence. Thus, the assertion by the COMELEC that she could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy because she became a resident of many places, flies in the face of settled jurisprudence in which this Court carefully made distinctions between (actual) residence and domicile for election law purposes. In Larena vs. Teves, 61 Phil. 36, we stressed: This court is of the opinion and so holds that a person who has his own house wherein he lives with his fam-

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ily in a municipality without having ever had the intention of abandoning it, and without having lived either alone or with his family in another municipality, has his residence in the former municipality, notwithstanding his having registered as an elector in the other municipality in question and having been a candidate for various insular and provincial positions, stating every time that he is a resident of the latter municipality. More significantly, in Faypon vs. Quirino, 96 Phil. 294, we explained that: A citizen may leave the place of his birth to look for greener pastures, as the saying goes, to improve his lot, and that, of course includes study in other places, practice of his vocation, or engaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot may desire to return to his native town to cast his ballot but for professional or business reasons, or for any other reason, he may not absent himself from his professional or business activities; so there he registers himself as voter as he has the qualifications to be one and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin has not forsaken him. This may be the explanation why the registration of a voter in a place other than his residence of origin has not been deemed sufficient to constitute abandonment or loss of such residence. It finds justification in the natural desire and longing of every person to return to his place of birth. This strong feeling of attachment to the place of ones birth must be overcome by positive proof of abandonment for another. From the foregoing, it can be concluded that in its above-cited statements supporting its proposition that petitioner was ineligible to run for the position of Representative of the First District of Leyte, the COMELEC was obviously referring to petitioners various places of (actual) residence, not her domicile. In doing so, it not only ignored settled jurisprudence on residence in election law and the deliberations of the constitutional commission but also the provisions of the Omnibus Election Code (B.P. Blg. 881) which provide that any person who transfers residence to another city, municipality or

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country solely by reason of his occupation; profession; employment in private or public service; educational activities; work in military or naval reservations; service in the army, navy or air force; the constabulary or national police force; or confinement or detention in government institutions in accordance with law shall not be deemed to have lost his original residence. What is undeniable, however, are the following set of facts which establish the fact of petitioners domicile, which we lift verbatim from the COMELECs Second Divisions assailed Resolution, thus: In or about 1938 when respondent was a little over 8 years old, she established her domicile in Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to 1949 when she graduated from high school. She pursued her college studies in St. Pauls College, now Divine World University in Tacloban, where she earned her degree in Education. Thereafter, she taught in the Leyte Chinese School, still in Tacloban City. In 1952, she married ex-President Ferdinand E. Marcos when he was still a congressman of Ilocos Norte and registered there as a voter. When her husband was elected Senator of the Republic in 1959, she and her husband lived together in San Juan, Rizal where she registered as a voter. In 1965, when her husband was elected President of the Republic of the Philippines, she lived with him in Malacaang Palace and registered as a voter in San Miguel, Manila. In February 1986 (she claimed that) she and her family were abducted and kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila. In 1992, respondent ran for election as President of the Philippines and filed her Certificate of Candidacy wherein she indicated that she is a resident and registered voter of San Juan, Metro Manila. Applying the principles discussed to the facts found by COMELEC, what is inescapable is that petitioner held various residences for different purposes during the past four decades. None of these purposes unequivocally point to an intention to abandon her domicile of origin in Tacloban, Leyte. Moreover, while petitioner was born in Manila, as a minor she naturally followed the domicile of her parents. She grew up in Tacloban, reached her

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adulthood there and eventually established residence in different parts of the country for various reasons. Even during her husbands presidency, at the height of the Marcos Regimes powers, petitioner kept her close ties to her domicile of origin by establishing residences in Tacloban, celebrating her birthdays and other important personal milestones in her home province, instituting wellpublicized projects for the benefit of her province and hometown, and establishing a political power base where her siblings and close relatives held positions of power either through the ballot or by appointment, always with either her influence or consent. These well-publicized ties to her domicile of origin are parts of the history and lore of the quarter century of Marcos power in our country. Either they were entirely ignored in the COMELECs Resolutions, or the majority of the COMELEC did not know what the rest of the country always knew: the fact of petitioners domicile in Tacloban, Leyte. Private respondent in his Comment, contended that Tacloban was not petitioners domicile of origin because she did not live there until she was eight years of age. He avers that after leaving the place in 1952, she abandoned her residency (sic) therein for many years and . . . (could not) re-establish her domicile in said place by merely expressing her intention to live there again. We do not agree. First, a minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is gained, it follows that in spite of the fact of petitioners being born in Manila, Tacloban, Leyte was her domicile of origin by operation of law. This domicile was not established only when she reached the age of eight years old, when her father brought his family back to Leyte contrary to private respondents averments. Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate (18 Am. Jur. 219-220): 1. 2. 3. An actual removal or an actual change of domicile; A bona fide intention of abandoning the former place of residence and establishing a new one; and Acts which correspond with the purpose. (See also Aquino vs. COMELEC, 64 SCAD 457, 248 SCRA 400).

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In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed to continue. Only with evidence showing concurrence of all three requirements can the presumption of continuity of residence be rebutted, for a change of residence requires an actual and deliberate abandonment, and one cannot have two legal residences at the same time. (20 Am. Jur. 71). In the case at bench, the evidence adduced by private respondent plainly lacks the degree of persuasiveness required to convince this court that an abandonment of domicile of origin in favor of a domicile of choice indeed occurred. To effect an abandonment requires the voluntary act of relinquishing petitioners former domicile with an intent to supplant the former domicile with one of her own choosing (domicilium voluntarium). In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation of law as a result of her marriage to the late President Ferdinand E. Marcos in 1952. For there is a clearly established distinction between the Civil Code concepts of domicile and residence. The presumption that the wife automatically gains the husbands domicile by operation of law upon residence in Article 110 of the Civil Code because the Civil Code is one area where the two concepts are well-delineated. Dr. Arturo Tolentino, writing on this specific area explains: In the Civil Code, there is an obvious difference between domicile and residence. Both terms imply relations between a person and a place; but in residence, the relation is one of fact while in domicile it is legal or juridical, independent of the necessity of physical presence. (Tolentino, Commentaries and Jurisprudence on the Civil Code, 1987 ed.) Article 110 of the Civil Code provides: Article 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with the husband if he should live abroad unless in the service of the Republic. A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as they affect the female spouse upon marriage yields nothing which would suggest that the female spouse automatically loses her domicile of origin in favor of the husbands choice of residence upon marriage.

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Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which states: La Mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los Tribunales, Sin embargo, podran conjusta causa eximirin de esta obligacion cuando el mahido transenda su residencia a ultramar o a pais extranjero. Note the use of the phrase donde quiera su fije de residencia in the aforequoted article, which means wherever (the husband) wishes to establish residence. This part of the article clearly contemplates only actual residence because it refers to a positive act of fixing a family home or residence. Moreover, this interpretation is further strengthened by the phrase cuando el marido translade su residencia in the same provision which means, when the husband shall transfer his residence, referring to another positive act of relocating the family to another home or place of actual residence. The article obviously cannot be understood to refer to domicile which is a fixed, fairly-permanent concept when it plainly connotes the possibility of transferring from one place to another not only once, but as often as the husband may deem fit to move his family, a circumstance more consistent with the concept of actual residence. The right of the husband to fix the actual residence is in harmony with the intention of the law to strengthen and unify the family, recognizing the fact that the husband and the wife bring into the marriage different domiciles (of origin). This difference could, for the sake of family unity, be reconciled only by allowing the husband to fix a single place of actual residence. Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article 109 which obliges the husband and wife to live together, thus: Article 109. The husband and wife are obligated to live together, observe mutual respect and fidelity and render mutual help and support. The duty to live together can only be fulfilled if the husband and wife are physically together. This takes into account the situations where the couple has many residences (as in the case of petitioner). If the husband has to stay in or transfer to any one of their residences, the wife should necessarily be with him in order that they may live

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together. Hence, it is illogical to conclude that Art. 110 refers to domicile and not to residence. Otherwise, we shall be faced with a situation where the wife is left in the domicile while the husband, for professional or other reasons, stays in one of their (various) residences. As Dr. Tolentino further explains: Residence and Domicile. Whether the word residence as used with reference to particular matters is synonymous with domicile is a question of some difficulty, and the ultimate decision must be made from a consideration of the purpose and intent with which the word is used. Sometimes, they are used synonymous; at other times, they are distinguished from one another. xxx Residence in the civil law is a material fact, referring to the physical presence of a person in a place. A person can have two or more residences, such as a country residence and a city residence. Residence is acquired by living in a place; on the other hand, domicile can exist without actually living in the place. The important thing for domicile is that, once residence has been established in one place, there be an intention to stay there permanently, even if residences is also established in some other place. (Tolentino, 1 Commentaries and Jurisprudence on the Civil Code, 220 [1987]). In fact, even the matter of a common residence between the husband and the wife during the marriage is not an iron-clad principle. In cases applying the Civil Code on the question of a common matrimonial residence, our jurisprudence has recognized certain situations where the spouses could not be compelled to live with each other such that the wife is either allowed to maintain a residence different from that of her husband or, for obviously practical reasons, revert to her original domicile (apart from being allowed to opt for a new one). In De La Via vs. Villareal, 41 Phil. 13, this Court held that [a] married woman may acquire a residence or domicile separate from that of her husband during the existence of the marriage where the husband has given cause for divorce. Note that the Court allowed the wife either to obtain a new residence or to choose a new domicile in such an event. In instances where the wife actually opts, under the Civil Code, to live separately from her husband either by taking a new residence or reverting to her domicile

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of origin, the Court has held that the wife could not be compelled to live with her husband on pain of contempt. In Arroyo vs. Vazquez de Arroyo, 42 Phil. 54, the Court held that: Upon examination of the authorities, we are convinced that it is not within the province of the courts of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. Of course, where the property rights of one of the pair are invaded, an action for restitution of such rights can be maintained. But we are disinclined to sanction the doctrine that an order, enforceable by process of contempt, may be entered to compel the restitution of the purely personal right of consortium. At best, such an order can be effective for no other purpose than to compel the spouses to live under the same roof; and the experience of those countries where the courts of justice have assumed to compel the cohabitation of married people shows that the policy of the practice is extremely questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the instance of either husband or wife; and if the facts were found to warrant it, that court would make a mandatory decree, enforceable by process of contempt in case of disobedience, requiring the delinquent party to live with the other and render conjugal rights. Yet this practice was sometimes criticized even by the judges who felt bound to enforce such orders, and in Weldon vs. Weldon (P.D. No. 52), decided in 1883, Sir James Hannen, President in the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed his regret that the English law on the subject was not the same as that which prevailed in Scotland, where a decree of adherence, equivalent to the decree for the restitution of conjugal rights in England, could be obtained by the injured spouse, but could not be enforced by imprisonment. Accordingly, in obedience to the growing sentiment against the practice, the Matrimonial Causes Act (1884) abolished the remedy of imprisonment; though a decree for the restitution of conjugal rights can still be procured, and in case of disobedience may serve in appropriate cases as the basis of an order for the periodical payment of a stipend in the character of alimony.

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In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has even attempted to make a preemptory order requiring one of the spouses to live with the other; and that was in a case where a wife was ordered to follow and live with her husband, who had changed his domicile to the City of New Orleans. The decision referred to (Bahn vs. Darby, 36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar to Article 56 of the Spanish Civil Code. It was decided many years ago, and the doctrine evidently has not been fruitful even in the State of Louisiana. In other states of the American Union the idea of enforcing cohabitation by process of contempt is rejected. (21 Cyc., 1148). In a decision of January 2, 1909, the Supreme Court of Spain appears to have affirmed an order of the Audiencia Territorial de Villadolid requiring a wife to return to the marital domicile, and in the alternative, upon her failure to do so, to make a particular disposition of certain money and effects then in her possession and to deliver to her husband, as administrator of the ganancial property, all income, rents, and interest which might accrue to her from the property which she had brought to the marriage. (113 Jur. Civ., pp. 1, 11). But it does not appear that this order for the return of the wife to the marital domicile was sanctioned by any other penalty than the consequences that would be visited upon her in respect to the use and control of her property; and it does not appear that her disobedience to that order would necessarily have been followed by imprisonment for contempt. Parenthetically, when Petitioner was married to then Congressman Marcos, in 1954, petitioner was obliged by virtue of Article 110 of the Civil Code to follow her husbands actual place of residence fixed by him. The problem here is that at that time, Mr. Marcos had several places of residence, among which were San Juan, Rizal and Batac, Ilocos Norte. There is no showing which of these places Mr. Marcos did fix, as his familys residence. But assuming that Mr. Marcos had fixed any of these places as the conjugal residence, what petitioner gained upon marriage was actual residence. She did not lose her domicile of origin.

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On the other hand, the common law concept of matrimonial domicile appears to have been incorporated, as a result of our jurisprudential experiences after the drafting of the Civil Code of 1950, into the New Family Code. To underscore the difference between the intentions of the Civil Code and the Family Code drafters, the term residence has been supplanted by the term domicile in an entirely new provision (Art. 69) distinctly different in meaning and spirit from that found in Article 110. The provision recognizes revolutionary changes in the concept of womens rights in the intervening years by making the choice of domicile a product of mutual agreement between the spouses. Without as much belaboring the point, the term residence may mean one thing in civil law (or under the Civil Code) and quite another thing in political law. What stands clear is that insofar as the Civil Code is concerned affecting the rights and obligations of husband and wife the term residence should only be interpreted to mean actual residence. The inescapable conclusion derived from this ambiguous civil law delineation therefore, is that when petitioner married the former President in 1954, she kept her domicile of origin and merely gained a new home, not a domicilium necessarium. Even assuming for the sake of argument that petitioner gained a new domicile after her marriage and only acquired a right to choose a new one after her husband died, petitioners acts following her return to the country clearly indicate that she not only impliedly but expressly chose her domicile of origin (assuming this was lost by operation of law) as her domicile. This choice was unequivocally expressed in her letters to the Chairman of the PCGG when petitioner sought the PCGGs permission to rehabilitate (our) ancestral house in Tacloban and farm in Olot, Leyte. . . to make them livable for the Marcos family to have a home in our homeland. Furthermore, petitioner obtained her residence certificate in 1992 in Tacloban, Leyte, while living in her brothers house, an act which supports the domiciliary intention clearly manifested in her letters to the PCGG Chairman. She could not have gone straight to her home in San Juan, as it was in a state of disrepair, having been previously looted by vandals. Her homes and residences following her arrival in various parts of Metro Manila merely qualified as temporary or actual residences, not domicile. Moreover, and proceeding from our discussion pointing out specific situations where the female spouse either reverts to her domicile of origin or chooses a new one during the subsistence of the marriage, it would be highly illogical for us to

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assume that she cannot regain her original domicile upon the death of her husband absent a positive act of selecting a new one where situations exist within the subsistence of the marriage itself where the wife gains a domicile different from her husband. In the light of all the principles relating to residence and domicile enunciated by this court up to this point, we are persuaded that the facts established by the parties weigh heavily in favor of a conclusion supporting petitioners claim of legal residence or domicile in the First District of Leyte. Article 51. When the law creating or recognizing them, or any other provision does not fix the domicile of juridical persons, the same shall be understood to be the place where their legal representation is established or where they exercise their principal functions. (41a) The law contemplates a situation where a juridical person is created by law, but the law does not state its domicile. A private corporation, for example may have been established by law, but its domicile has not been fixed. It is understood that its domicile is the place where its legal representation is made or where it exercises its principal functions. So that, if it exercises its principal functions in Manila, that is its domicile.

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FAMILY CODE OF THE PHILIPPINES


On July 26, 1987, President Corazon C. Aquino signed into law Executive Order No. 209 otherwise known as the Family Code of the Philippines. Some of the reasons for the law are enunciated in the whereases of the same, thus: WHEREAS, almost four decades have passed since the adoption of the Civil Code of the Philippines; WHEREAS, experience under said Code as well as pervasive changes and developments have necessitated revision of its provisions on marriage and family relations to bring them closer to Filipino customs, values and ideals and reflect contemporary trends and conditions; WHEREAS, there is a need to implement policies embodied in the new Constitution that strengthen marriage and the family as basic social institutions and ensure equality between men and women. On July 17, 1987, the President signed Executive Order No. 277 amending Article 26, 36 and 39 of the law. Then, RA 6809 was passed by Congress on October 20, 1989 amending pertinent portions of the law especially lowering the age of majority from 21 to 18. RA 8552 was later on enacted amending the provisions of the law on adoption. Later on, RA 8533 amended Article 40 of the law eliminating the period within which to file an action to declare a void marriage void. There were subsequent laws enacted like RA 9552 allowing illegitimate children to carry the surname of their parents under certain conditions. The Family Code took effect on August 3, 1988.

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Title I MARRIAGE
Chapter 1 Requisites of Marriage Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this code. (52a) Concept of Marriage. As a status, it is the civil status of one man and one woman legally united for life, with rights and duties which for the establishment of families and multiplication and education of the species are, or from time to time, may thereafter be assigned by law to matrimony. (Bishop, Marriage, Divorce and Separation, Sec. 11). As an act, it is an act by which a man and a woman unite for life, with the intent to discharge towards society and one another those duties which result from the relation of husband and wife. (Schoule, Law of Dom. Rels., par. 11). Nature of marriage. Marriage is not like an ordinary contract, that if there is no performance of ones duties, an ordinary contract can be the subject of rescission; in marriage, there is no such rescission. In marriage, the remedy of an aggrieved spouse in case one of the spouses fails to perform his duties, to the extent of bringing dishonor or discredit to the family is to ask for damages. In ordinary contracts, the remedy is to ask for specific performance or rescission with damages in both cases. Or, if one of the spouses leaves the conjugal dwelling, the other spouse may not compel the other to return to the same since the act of living together is a personal act which cannot be compelled by processes of the court.

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Marriage is a permanent union. The parties cannot fix a period for its efficacy to be ineffective after a few years, especially so that its nature, consequences and incidents are not subject to stipulations of the parties for they are governed by law. Its permanent character has been taken from the well-accepted rule that, What God has put together, no man shall put asunder. The parties, however, may enter into an ante-nuptial agreement as to what property relationship shall govern them during the marriage. But this agreement shall pertain to their properties alone, and not on the incidents and consequences as well as their marital relationship. Once the parties are married, they cannot agree that after a few years, they will consider the marriage void since it is not for them to decide for themselves the validity of their marriage. They cannot agree that they will separate, that there will be no love, no respect, no obligation to support and no fidelity, for all of these things are all incidents of marriage. In fact, there are obligations imposed upon them by law especially so that the Family Code provides that the husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. (Art. 68, Family Code). To emphasize the importance of marriage to society, the Supreme Court considered as an act of immorality, the act of a judge of cohabiting with another woman despite the existence of a previous valid or existing marriage. In fact, even if the first spouse has already abandoned him, he cannot just cohabit with another woman, or get married with her without having the first marriage annulled or declared void, for to do so would be making a mockery of the inviolability of the marriage as a basic social institution. (MTJ92-716, October 18, 1995; see also Atienza vs. Brillantes, Jr., A.M. No. MTJ-92-706, March 29, 1995, 60 SCAD 119). In Goitia vs. Campos Rueda, 35 Phil. 252, no less than the Supreme Court ruled that marriage partakes of the nature of an ordinary contract. But it is something more than a mere contract. It is a new relation, the rights, duties and obligations of which rest not upon the agreement of the parties but upon general law which defines and prescribes those rights, duties and obligations. Marriage is an institution, in the maintenance of which in its purity the public policy is deeply interested. In Ramirez vs. Gmur, 42 Phil. 855, it was said that marriage is an institution in the maintenance of which in its purity, the public is deeply interested, for it is the foundation of the family and of society, without which there could be neither civilization nor progress. Bishop, in his comments on Marriage, Divorce and Separation, said that the civil status of one man and one woman,

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legally united for life, with rights and duties which for the establishment of families and the multiplication and education of species are, or from time to time may thereafter be assigned by law to matrimony. Well-entrenched is the rule that a husband is not merely a man who has contracted marriage - he is a partner who has solemnly sworn to love and respect his wife and remain faithful to her until death. (Narag vs. Narag, 291 SCRA 451 [1998]). Mail-Order Bride. To emphasize the importance of marriage as a social institution and a relationship, Congress enacted RA 6955 penalizing any person, natural or judicial, association, club or any entity who may commit any of the following acts: 1. To establish or carry on a business which has for its purpose the matching of Filipino women for marriage to foreign nationals either on a mail-order basis or through personal introduction; To advertise, publish, print or distribute or cause the advertisement, publication, printing or distribution of any brochure, flier, or any propaganda material calculated to promote the prohibited acts in the preceding paragraph; To solicit, enlist or in any manner attract or induce any Filipino women to become a member in a club or association whose objective is to match women for marriage to foreign nationals whether on a mail-order basis or through personal introduction for a fee; To use the postal service to promote the prohibited acts in subparagraph 1. (Republic Act No. 6955, Section 2, June 13, 1990).

2.

3.

4.

Presumption of marriage for man and woman deporting themselves to be married. In Maria del Rosario Mariategui, et al. vs. CA, et al., G.R. No. 57062, January 24, 1992, it appeared that Lupo Mariategui contracted 3 marriages. With his first wife, he begot four children; second wife, a daughter; third wife, three children. At the time of his death, he left properties which he acquired when still unmarried. On December

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2, 1967, the children in the first and second marriages executed an extrajudicial partition over Lot 163. A title was later on issued under their names. On April 23, 1973, the children in the third marriage filed a complaint claiming that Lot No. 163 and Lots Nos. 669, 1343 and 154 were owned by their father, hence, the adjudication of Lot No. 163 in favor of the other heirs deprived them of their share. They prayed for partition. The defendants moved for dismissal contending that the complaint was one of recognition of natural children. It was denied. On February 16, 1977, the complaint and counterclaim were dismissed on the theory that: The plaintiffs right to inherit depends upon the acknowledgment or recognition of their continuous enjoyment and possession of status of children of their supposed father. The evidence failed to sustain such premise, and it is clear that this action cannot be sustained. On appeal, the CA declared all the children and descendants of Lupo as entitled to equal shares. A motion for reconsideration was filed, but it was denied, hence, this petition. Held: Lupo Mariategui and Felipa Velasco were alleged to have been lawfully married on or about 1930. This fact has been based on the declaration communicated by Lupo Mariategui to Jacinto who testified that when (his) father was still living, he was able to mention to (him) that he and (his) mother were able to get married before a Justice of the Peace of Taguig, Rizal. The spouses deported themselves as husband and wife, and were known in the community to be such. Although no marriage certificate was introduced to this effect, no evidence was likewise offered to controvert these facts. Moreover, the mere fact that no record of the marriage exists does not invalidate the marriage, provided all requisites for its validity are present. (People vs. Borromeo, 133 SCRA 106 [1984]). Under these circumstances, a marriage may be presumed to have taken place between Lupo and Felipa. The laws presume that a man and a woman, deporting themselves as husband and wife, have entered into a lawful contract of marriage; that a child born in lawful wedlock, there being no divorce, absolute or from bed and board is legitimate; and that things have happened according to the ordinary

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course of nature and the ordinary habits of life. (Section 3[aa], [bb], [cc], Rule 131, Rules of Court; Corpus vs. Corpus, 85 SCRA 567 [1978]; Suarnaba vs. Workmens Compensation, 85 SCRA 502 [1978]; Alavado vs. City Govt. of Tacloban, 139 SCRA 230 [1985]; Reyes vs. Court of Appeals, 135 SCRA 439 [1985]). In fact, in Rivera vs. IAC, 182 SCRA 322, it was said that Adelaidos failure to present his parents marriage certificate is not fatal to his case as he can still rely on the presumption of marriage. Courts look upon the presumption of marriage with great favor as it is founded on the following rationale: The basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdiction is not only a civil contract, but it is a new relation, an institution in the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to that case, to be in fact married. The reason is that such is the common order of society and if the parties were not what they thus hold themselves out as being, they would be living in the constant violation of decency and of law x x x. (Adong vs. Cheong Seng Gee, 43 Phil. 43 [1922]; quoted in Alavado vs. City Government of Tacloban, 139 SCRA 230 [1985]; See also Abadilla vs. Tabiliran, Jr., 65 SCAD 197, 249 SCRA 447, October 25, 1995, citing Justice Malcolm). So much so that once a man and a woman have lived as husband and wife and such relationship is not denied or contradicted, the presumption of their being married must be admitted as a fact. (Alavado vs. City Govt. of Tacloban, 139 SCRA 230). The Civil Code provides for the manner under which legitimate filiation may be proven. However, considering the effectivity of the Family Code of the Philippines, the case at bar must be decided under a new, if not entirely dissimilar, set of rules because the parties have been overtaken by events, to use the popular phrase. (Uyguangco vs. Court of Appeals, G.R. No. 76873, October 26, 1989). Thus, under Title VI of the Family Code, there are only two classes of children legitimate and illegitimate. The fine distinctions among various types of illegitimate children have been eliminated. (Castro vs. Court of Appeals, 173 SCRA 656 [1989]).

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Article 172 of the said Code provides that the filiation of legitimate children may be established by the record of birth appearing in the civil register or a final judgment; or by the open and continuous possession of the status of a legitimate child. Evidence on record proves the legitimate filiation of the private respondents. Jacintos birth certificate is a record of birth referred to in the said article. Again, no evidence which tends to disprove facts contained therein was adduced before the lower court. In the case of the two other private respondents, Julian and Paulina, they may not have presented in evidence any of the documents required by Article 172 but they continuously enjoyed the status of children of Lupo Mariategui in the same manner as their brother Jacinto. While the trial court found Jacintos testimonies to be inconsequential and lacking in substance as to certain dates and names of relatives with whom their family resided, these are but minor details. The hanging fact is that for a considerable length of time and despite the death of Felipa in 1941, the private respondents and Lupo lived together until Lupos death in 1953. It should be noted that even the trial court mentioned in its decision the admission made in the affidavit of Cresenciana Mariategui Abas, one of the petitioners herein, that x x x Jacinto, Julian and Paulina Mariategui ay pawang mga kapatid ko sa ama x x x. (Exh. M, Record on Appeal, pp. 65-66). In view of the foregoing, there can be no other conclusion than that private respondents are legitimate children and heirs of Lupo Mariategui and therefore, the time limitation prescribed in Article 285, New Civil Code, for filing an action for recognition is inapplicable to this case. Speaking of the term spouses, the Supreme Court, in Eugenio, Sr. vs. Velez, 185 SCRA 425, said that it refers to married couples and not to common-law spouses. Testimonial Evidence to Prove Marriage. The case of Leoncia and Gaudioso Balogbog vs. CA, et al., G.R. No. 83598, March 7, 1997, 80 SCAD 229, is a mere reiteration of the rule on presumption of marriage although there was a failure to present the marriage certificate. But there were testimonies to show that a marriage was celebrated. It has been held that evidence consisting of the testimonies of witnesses can be competent to prove the marriage. Indeed, although a marriage contract is primary evidence, the failure to present it is not proof that marriage did not

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take place. Other evidence may be presented to prove marriage. (U.S. vs. Memoracion, 34 Phil. 633; People vs. Borromeo, 133 SCRA 106). An exchange of vows can be presumed to have been made from the testimonies of the witness who states that the wedding took place, since the very purpose of having a wedding is to exchange vows of marital commitment. It would be indeed unusual to have a wedding without an exchange of vows and quite unnatural for people not to notice its absence. (See also People vs. Ignacio, 81 SCAD 138, 270 SCRA 455, where there was a presumption of marriage). How a marriage may be proven. Marriage may be proven by the marriage certificate which is the best evidence. Any competent and relevant evidence can also prove it. Testimony by one of the parties to the marriage or by one of the witnesses to the marriage, has been held to be admissible to prove the fact of marriage. The person who officiated the solemnization is also competent to testify as an eyewitness to the fact of marriage (Pugeda vs. Trias, 4 SCRA 849). In Balogbog vs. CA (269 SCRA 259), it was held that although a marriage contract is considered primary evidence of marriage, the failure to present it is not proof that no marriage took place. Other evidence may be presented to prove marriage. Testimonial evidence to prove the fact of marriage is allowed. In Trinidad vs. CA (289 SCRA 188), where because of the destruction of the marriage contract, testimonial evidence was accepted in its place. (Vda. de Jacob vs. CA, G.R. No. 135216, August 19, 1999). Presumption of marriage. In Reyes vs. CA, et al., G.R. No. 124099, October 30, 1997, 88 SCAD 632, the Supreme Court further emphasized the presumption of marriage when a man who executed a will instituted his wife. His illegitimate children contested such portion of the will contending that their father never got married during his lifetime. They wanted the woman to produce her marriage certificate with their father and when she could not do so, they contended that the woman could not be instituted as one of the heirs of their father. In brushing aside their contention, the Supreme Court said that there is a presumption of marriage. It can be proven by evidence aliunde. This is especially so that the man instituted the wife which was even considered by the Court as a declaration against interest. In a very eloquent language, the Court said that a will can be considered as the testator

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talking. That is, if the will is submitted to probate, it is as if the testator is at the witness stand talking and admitting that he was married to the woman whom he instituted as his wife. Marriage can be proven by evidence aliunde, that despite the fact that the marriage certificate cannot be presented which is the best evidence of the same, yet, it can be shown by testimonies of the sponsors, by the public and the fact that there was baptism of children, to mention some among the many proofs of marriage. The solemnizing officer can even be brought to court to testify that in fact, he solemnized the marriage of the spouses. Characteristics of Marriage. To emphasize how society treats and considers the importance of marriage, the Supreme Court said that marriage is not just an adventure but a lifetime commitment. Hence, it was said in Santos vs. CA, et al., G.R. No. 112019, January 4, 1995, 58 SCAD 17, that: We should continue to be reminded that innate in our society, then enshrined in our Civil Code, and even now still indelible in Article 1 of the Family Code, is that Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. Our Constitution is no less emphatic: Section 12. The State recognizes the sanctity of the family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall

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strengthen its solidarity and actively promote its total development. Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. (Article XV, 1987 Constitution). The above provisions express so well and so distinctly the basic nucleus of our laws on marriage and the family, and they are no doubt the tenets we still hold on to. (Santos vs. CA, et al., G.R. No. 112019, January 4, 1995, 58 SCAD 17). Such protection is manifest from the strict interpretation of Philippine marriage laws, such that in case of legal separation, annulment and declaration of nullity of marriage, the State is represented by the prosecutors to prevent the presentation of fabricated evidence or collusion between the parties. Along the same vein, the Supreme Court, in Republic vs. Nolasco, 220 SCRA 20 (March 17, 1993), said that spouses should not be allowed, by the mere simple expedient that one of them left the conjugal home and never to return again to circumvent the laws on marriage which is not an ordinary but a special contract of permanent union. The Supreme Court in this case considered as not serious efforts to look for a missing wife the acts of simply asking friends or neighbors the whereabouts of his wife and sending a letter to her former place of work and when there was no answer he asked the court to declare her as presumptively dead. They were considered as merely sketchy acts of looking for the missing spouse. It was said that such acts do not warrant the declaration of presumptive death, for the law seeks to preserve the marriage instead of wrecking it. Article 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer. (53a) Article 3. The formal requisites of marriage are: (1) Authority of the solemnizing officer;

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(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (53a, 55a) Article 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35(2). A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45. An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n) Legal Capacity. Legal capacity means that the parties must have attained the age requirement and that there should be no legal impediment to marry each other. The minimum marriageable age is 18. So that if a man and a woman at the age of seventeen (17) marry each other with the consent of their parents, the marriage is void because they must be eighteen (18) years of age as required by Article 5 of the Family Code. They have no legal capacity. In the same manner, if one of them has an existing valid marriage, the marriage is void since the married party could not have had the legal capacity to contract a second marriage because of the legal impediment to marry a second time. In fact, even if the marriage referred to above is void, a subsequent marriage cannot be contracted before the declaration of nullity of the previous marriage. (Art. 40, Family Code). This is so because even a void marriage is now a legal impediment to remarry because the law now requires that even void marriage has yet to be declared void in a final judgment before a person may remarry. The concept of legal capacity here refers to the age of the parties to the marriage as well as a situation where there should be no preexisting marriage of either or both parties to the marriage or what is known as legal impediment.

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The minimum marriageable age is 18 years (Article 5, Family Code), so that if a party or both of them is/are below this age would contract marriage, even with the consent of their parents, as well as all the other requisites of marriage, the same would still be void because of lack of capacity. Even if the marriage is celebrated abroad and valid there as such, the same would still be void since the law that determines the validity of the marriage of the Filipino is his/her national law. (Art. 15, New Civil Code; Arts. 26[par. 1], 35[1], Family Code). Illustration: A, a man at the age of 40 and B, only 16 years of age, and both Filipinos, met in Hongkong where B was working as an overseas Filipino worker. They fell in love with one another and decided to get married with all the other requisites of marriage. The marriage is void because of lack of capacity of B, as she was below the age of 18 at the time of the marriage. Even if the marriage is valid in Hongkong, the same is still void in the Philippines because the law that determines the legal capacity of B is Philippine law as it is binding upon her even if she is living abroad. (Art. 15, New Civil Code). While it is true that her marriage with A is valid in Hongkong, it is still void, for again the Family Code provides all marriages solemnized outside of the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those under Article 35(1). The law makes reference to Article 35(1) which declares as void marriages of Filipino citizens if anyone or both of them is/are below 18 years even with the consent of their parents or guardians. This void marriage cannot even be made valid by cohabitation, for a void marriage is void. It cannot be cured by subsequent cohabitation. There is nothing that would prevent the spouses from renewing their marriage vows by getting married again. The marriage would then be valid if in the meantime, they have already reached 18 or so. But this subsequent marriage is not going to validate the previous void marriage. It does not cleanse the defect of the previous one. One question may be asked: If A and B above would beget children, what is the status of the latter? They are

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illegitimates because they were born out of a void marriage. In fact, they cannot even be legitimated by the subsequent marriage of A and B. The remedy of A and B to elevate them to the status of legitimate children is to adopt them, for even the parents can adopt their illegitimate children. (Art. 185, Family Code). Void marriage as a legal impediment to remarry. One question has been asked: If there is a prior existing marriage of A and B, but it is void, can anyone of them just get married? The authors say NO. This is so because of the present rule that there is a need to have a void marriage to be declared void. In fact, Article 39 of the Family Code provides that the action or defense for the declaration of absolute nullity of a marriage shall not prescribe. Furthermore, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (Art. 40, Family Code). It is therefore clear that even if a marriage is void, it must be declared void first because the parties cannot decide for themselves the invalidity of their marriage. In Donato vs. Luna, G.R. No. 53642, April 15, 1988, it was ruled that assuming that the first marriage was null and void on the ground alleged by the petitioner, the fact would not be material to the outcome of the criminal case. Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity is so declared can it be held as void. So long as there is no such declaration, the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy. (See also Weigel vs. Sempio-Diy, 143 SCRA 499; Atienza vs. Brillantes, Jr., A.M. No. MTJ92-706, March 29, 1995, 60 SCAD 119; Mercado vs. Tan). Since there is a need for a prior declaration of nullity of a void marriage, that void marriage can be considered a legal impediment to contract a subsequent marriage because of the presumption of its validity prior to its declaration of nullity. Legal Impediment. The rule that if there is an existing marriage, there can be no subsequent valid marriage is not an absolute rule. For under Article

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41 of the Family Code, if one of the spouses has been absent from the conjugal dwelling for two (2) or four (4) years, depending upon the circumstances of the absence, the present spouse may marry again, but he has to file a summary action for the declaration of presumptive death of the absent spouse. If there is a judgment declaring the absent spouse presumptively dead, the present spouse can marry again. The present spouse must not know the whereabouts of the absent spouse. After the declaration of presumptive death, the present spouse becomes capacitated to remarry, but the first marriage is still existing, unless it has been declared void or annulled in a previous proceeding. In the above-cited situation, while there was a prior marriage, the present spouse can remarry under peculiar cicumstances, that is, were it not for the absence of the spouse and the declaration of presumptive death, the present spouse could not have been capacitated to contract a valid subsequent marriage. But what the law recognizes as a valid marriage is the marriage of the present spouse who does not know the whereabouts of the absent spouse, for if he/she knows, then the marriage is void and bigamous. Consent of the parties. The consent referred to by law as a pre-requisite of a valid marriage is the consent of the parties, not their parents. For, if there is no consent at all, the marriage is void. If there is vitiation of consent by fraud, intimidation, etc., then the marriage is only voidable; it is valid but it can be annulled. If there is no consent of the parents, the marriage is only voidable until it is annulled. Authority of Solemnizing Officer. The law (Art. 7, Family Code) enumerates the authorities who can solemnize marriages. Justices of the Supreme Court, the Court of Appeals, the Sandiganbayan can solemnize marriages all over the Philippines because their jurisdiction covers the whole country. But a judge of the Regional Trial Court and Municipal or Metropolitan Trial Court judges can only solemnize marriages within their territorial jurisdiction. That is, if we have to look into the literal provisions of the law. But the Supreme Court has liberalized the law, saying that if a judge solemnized a marriage in a place other than his official station, still it would be valid. The reason that, such solemnization is only a formal requisite. A defect in a formal requisite of marriage does not go into the validity of the marriage. But it affects

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the three-fold responsibility of the solemnizing officer, like criminal, civil and administrative responsibility. Case: Araes vs. Judge Salvador M. Occiano A.M. No. MTJ-02-1390, April 11, 2002 Facts: The MTC Judge of Balatan, Camarines Sur solemnized a marriage in Nabua, Camarines Sur. It was likewise solemnized without a marriage license. After the death of the husband, her right to inherit vast properties left by her husband was not recognized. She asked that the judge be sanctioned. The judge explained that when he discovered that there was no license, he wanted to stop the ceremonies but he was prevailed upon to pursue it as there was already an influx of visitors. So, he continued out of human compassion and that if he reset it, it might aggravate the condition of the man. Was the actuation of the judge proper? Why? Held: No. The authority of the regional trial court judges and judges of inferior courts to solemnize marriages is confined in their territorial jurisdiction as defined by the Supreme Court. The case at bar is not without precedent. In Navarro vs. Domagtoy, 259 SCRA 129, a judge held office and had jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte. However, he solemnized a wedding at his residence in the municipality of Dapa, Surigao del Norte which did not fall within the jurisdictional area of the municipalities of Sta. Monica and Burgos. A priest who is commissioned and allowed by his local ordinance to marry the faithful is authorized to do so only within the area or diocese or place allowed by his Bishop. An appellate court Justice or a Justice of the Supreme Court has jurisdiction over the entire Philippines to solemnize marriages, regardless of the venue, as long as the requisites of the Family Code are complied with. However, judges who are appointed to specific jurisdictions, may officiate in weddings only within said areas and not beyond. Where a judge solemnizes a marriage outside of his courts jurisdiction, there is a

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resultant irregularity in the formal requisite laid down in Article 3, which while it may not affect the validity of the marriage, may subject the officiating official to administrative liability. While the requirement of authority is prescribed by the law for a marriage to be valid, yet, its defect or infirmity does not go into the validity of the marriage, but it merely affects the liability of the solemnizing officer. The reason is obvious, as authority is only a formal requisite of marriage. Marriage ceremonious in character. But let us say that A and B were legally married in 1946 in Dingras, Ilocos Norte. In 1996, they celebrated their golden wedding anniversary in Manila, with Mayor Wilfredo Parado, the Mayor of Dingras, solemnizing the same at the Manila Hotel. Can we consider it valid considering that the mayor has no authority to solemnize the marriage in Manila? The marriage is still valid considering that it is only a marriage ceremonious in character which does not have to comply with the requisites of a valid marriage. It is only a renewal of their marriage vows; a mere ceremony. The rule laid down in Navarro vs. Domagtoy does not apply. He cannot even be held liable administratively, civilly and criminally. In this kind of marriage, license is not even necessary. Marriage license should be existing at the time of the marriage. One of the requisites of a valid marriage is license. Without license, the marriage is void. It must be exhibited at the time of the celebration of the marriage. If it is issued thereafter, the marriage is void. This is one of the means by which the State intervenes in the formation of the family. It must be recalled that the Constitution recognizes the family as a Basic social institution which is the basis of the society. The case of Cosca, et al. vs. Hon. Lucio Palaypayon, Jr., et al., A.M. No. MTJ-92-721, September 30, 1994, 55 SCAD 759, arose out of an administrative case filed against the judge (Mun. Court of Tinmabac, Camarines Sur) for solemnizing marriages without marriage licenses. The license numbers were not reflected in the contracts and the judge did not sign the marriage certificates for he allegedly had to wait for the marriage licenses to be submitted by

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the parties; hence, the marriage contracts were not filed with the local civil registrar. In fining the judge for P20,000.00, the Supreme Court said: On the charge regarding illegal marriages, the Family Code pertinently provides that the formal requisites of marriage are, inter alia, a valid marriage license except in cases provided for therein. (Art. 3[2], Family Code). Complementarily, it declares that the absence of any of the essential or formal requisites shall generally render the marriage void ab initio and that, while an irregularity in the formal requisites shall not affect the validity of the marriage, the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (Art. 4, Family Code). Marriage without license void. The marriage between Angelina M. Castro and Edwin Cardenas was without the knowledge of their parents. They called it a secret marriage, a phrase unknown in law. They did not live together immediately after the marriage, but later on lived for four (4) months; then a child was born. Problem arose when Angelina wanted to go to the USA. As she was trying to put in order her marital status, it was discovered that there was no marriage license issued prior to the celebration of their marriage. This was supported by a certification by the Local Civil Registrar of Pasig, Metro Manila, that the alleged license cannot be located. The petition for judicial declaration of nullity was denied on the ground that the inability of the certifying official to locate the marriage license is not conclusive to show that there was no marriage license issued. The Court of Appeals reversed the decision, hence, this petition. In affirming the Court of Appeals decision, the Supreme Court held: The Civil Code (now the Family Code) provides that no marriage shall be solemnized without a marriage license first issued by the local civil registrar. Being one of the essential (should be formal) requisites of a valid marriage, absence of a license would render the marriage void ab initio. The presentation of the certification of due search

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and inability to find issued by the Registrar enjoys probative value, he being the officer charged under the law to keep a record of all data relative to the issuance of a marriage license. The subject matter is one of those commonly known as secret marriages a legally non-existent phrase but ordinarily used to refer to a civil marriage celebrated without the knowledge of the relatives and/or friends of either or both of the contracting parties. (Republic vs. CA, et al., G.R. No. 103047, September 2, 1994, 55 SCAD 157). Issuance of a marriage license an act of States intervention. The law declares as void a marriage contracted without a marriage license. One authority says that the issuance of the marriage license is the most important, perhaps the only act whereby the State intervenes in the formation of families. It is in the issuance of the license that the State determines whether there are impediments in the marriage. Hence, the marriage license should be an important requisite of marriage such that without it, the marriage should be considered void. Another purpose of the marriage license is to prevent hasty marriages which in some cases are bigamous and marriages between minors without parental consent. This purpose is difficult to attain, unless a marriage license is made an essential requisite of marriage. (Capistrano, Civil Code of the Philippines, 1950 ed., p. 80; Nial vs. Bayadog, supra.). In the case of an application for a marriage license, the law requires its publication for a period of ten (10) days in conspicuous places in the locality before the issuance of the marriage license. The purpose here is to give notice to the public, so that if there are interested parties who are aware of any impediment to the prospective marriage of the applicants for a license, they can manifest the same to the local civil registrar who shall note the same in the application that there is an impediment to the marriage. It is also for this purpose that the law requires an open ceremony so that, if during the marriage ceremony, anyone may object to its proceedings if he knows of an impediment to the marriage. Void marriage for lack of license. One of the basic requirements for the validity of a marriage is the existence of a license at the time of its celebration. This is so

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because the requirement and issuance of marriage license is the states demonstration of its involvement and participation in every marriage, in the maintenance of which the general public is interested. (Engrace Nial, et al. vs. Norma Bayadog, G.R. No. 133778, March 14, 2000, citing Perido vs. Perido, 63 SCRA 97 [1975]). There are, however exceptions to the rule as when a man and a woman have been living together as husband and wife without the benefit of marriage but without legal impediment to marry each other for a period of five (5) years prior to the day of the celebration of the marriage. But if there was a legal impediment to marry each other during the period of cohabitation, no matter how long it may be, the marriage, if celebrated without a license is void. It is not enough that they have no legal impediment to marry at the time of the celebration of the marriage, it is necessary that during the 5-year period of cohabitation, they did not have any legal impediment to marry. To say otherwise would be to sanction immorality. Let us say for example, that a man lived with a woman but both of them are legally married. The wife of the man died and immediately thereafter, they got married without any license. During their coverture for 5 years, there was legal impediment to marry. But at the time of the celebration of their marriage, there was impediment. To rule that their marriage is valid without license is to sanction immorality. This is not the contemplation of the law. The law never intends to sanction immorality. Case: Engrace Nial, et al. vs. Norma Bayadog G.R. No. 133778, March 14, 2000 Facts: Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out of their marriage were born herein petitioners. Teodulfa was shot by Pepito resulting in her death on April 24, 1985. One year and 8 months thereafter or on December 11, 1986, Pepito and respondent Norma Badayog got married without any marriage license. In lieu thereof, Pepito and Norma executed an affidavit dated December 11, 1986 stating that they had lived together as husband and wife for at least five years and were thus exempt from securing a marriage license. On February 19, 1997, Pepito died in a car accident. After their fathers death, petitioners filed a petition for

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declaration of nullity of the marriage of Pepito to Norma alleging that the said marriage was void for lack of a marriage license. The case was filed under the assumption that the validity or invalidity of the second marriage would affect petitioners successional rights. Norma filed a motion to dismiss on the ground that petitioners have no cause of action since they are not among the persons who could file an action for annulment of marriage under Article 47 of the Family Code. The lower court dismissed the action on the ground that petitioners should have filed the action to declare their fathers marriage to respondent before his death applying by analogy Article 47 of the Family Code which enumerates the time and the persons who could initiate an action for annulment of marriage. Not contented with such ruling, petitioners filed a petition for review with the Supreme Court on a pure question of law. But to have a clear view of the case, let us consider the following issues: 1. 2. 3. 4. What law should govern the disposition of the case? What is the significance of the requirement of a marriage license? What is the length and nature of the cohabitation of the spouses who got married without a marriage license? Do the children in the first marriage have the personality to question the validity of their fathers second marriage even after his death and what for?

The Supreme Court resolved the foregoing issues and said: The two marriages involved herein having been solemnized prior to the effectivity of the Family Code, the applicable law to determine their validity is the Civil Code which was the law in effect at the time of their celebration. (Tamano vs. Ortiz, 95 SCAD 436, 291 SCRA 584 [1998]). A valid marriage license is a requisite of marriage under Article 53 of the Civil Code (Now Article 3, Family Code), the absence of which renders the marriage void ab initio pursuant to Article 80(3) (Now Article 4, Family Code) in relation to Article 58. The requirement and issuance of marriage license is the States demonstration of its involvement and participation in every marriage in the maintenance of which the general public is interested. (Perido vs. Perido, 63 SCRA 97 [1975]). This interest proceeds from the constitutional mandate that the State

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recognizes the sanctity of family life and affording protection to the family as a basic autonomous social institution. (Sec. 12, Article II, Constitution; Hernandez vs. CA, G.R. No. 126010, December 8, 1999, 116 SCAD 815; Tuazon vs. CA, 70 SCAD 132, 256 SCRA 158 [1996]). Specifically, the Constitution considers marriage as an inviolable social institution, and is the foundation of family life which shall be protected by the State. (Sec. 2, Art. XV, Constitution). This is why the Family Code considers marriage as a special contract of permanent union (Art. 1, Family Code) and case law considers it not just an adventure but a lifetime commitment. (Santos vs. CA, 58 SCAD 17, 310 Phil. 21). However, there are several instances recognized by the Civil Code (now the Family Code) wherein a marriage license is dispensed with, one of which is that provided in Article 76 (now Article 34, Family Code), referring to the marriage of a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least five years before the marriage. The rationale why no license is required in such case is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicants name for a marriage license. The publicity attending the marriage license may discourage such persons from legitimizing their status. (Report of the Code Commission, p. 80). To preserve peace in the family, avoid the peeping and suspicious eye of public exposure and contain the source of gossip arising from the publication of their names, the law deemed it wise to preserve their privacy and exempt them from that requirement. There is no dispute that the marriage of petitioners father to respondent Norma was celebrated without any marriage license. In lieu thereof, they executed an affidavit stating that they have attained the age of majority, and, being unmarried, have lived together as husband and wife for at least five years, and that we now desire to marry each other. The only issue that needs to be resolved pertains to what nature of cohabitation is contemplated under Article 76 of the Civil Code (now Article 34, Family Code) to warrant the counting of the five-year period in order to exempt the future spouses from securing a marriage license. Should it be a cohabitation wherein both parties are capacitated to marry each other during the entire

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five-year continuous period or should it be a cohabitation wherein both parties have lived together and exclusively with each other as husband and wife during the entire five-year continuous period regardless of whether there is a legal impediment to their being lawfully married, which impediment may have either disappeared or intervened sometime during the cohabitation period? Working on the assumption that Pepito and Norma have lived together as husband and wife for five years without the benefit of a cohabitation as husband and wife where the only missing factor is the special contract of marriage to validate the union, in other words, the five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This five-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity meaning no third party was involved at any time within the five years and continuity that is unbroken. Otherwise, if that continuous five-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common-law relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is based on the approximation of the requirements of the law. The parties should not be afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar. The Civil Code provides: Article 63: x x x. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. x x x. Article 64: Upon being advised of any alleged impediment to the marriage, the local civil registrar shall forth-

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with make an investigation, examining persons under oath. x x x This is reiterated in the Family Code thus: Article 17 provides in part: x x x. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. x x x Article 18 reads in part: x x x. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his finding thereon in the application for a marriage license. x x x. This is the same reason why our civil law, past or present, absolutely prohibited the concurrence of multiple marriages by the same person during the same period. Thus, any marriage subsequently contracted during the lifetime of the first spouse shall be illegal and void (Article 83, New Civil Code; Art. 41, Family Code), subject only to the exception in cases of absence or where the prior marriage was dissolved or annulled. The Revised Penal Code complements the civil law in that the contracting of two or more marriages and having of extramarital affairs are considered felonies, i.e., bigamy and concubinage and adultery. The law sanctions monogamy. In this case, at the time of Pepito and respondents marriage, it cannot be said that they have lived with each other as husband and wife for at least five years prior to their wedding day. From the time Pepitos first marriage was dissolved to the time of his marriage with respondent, only about twenty months had elapsed. Even assuming that Pepito and his first wife had separated in fact, and thereafter both Pepito and respondent had started living with each other that has already lasted for five years, the fact remains that their fiveyear period of cohabitation was not the cohabitation contemplated by law. It should be in the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract. Pepito had a subsisting marriage at the time when he started cohabiting with respondent. It is immaterial that when they lived with each other, Pepito had already been separated in fact from his lawful spouse. The subsistence of the marriage even where there was actual severance of the filial companionship between the

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spouses cannot make any cohabitation by either spouse with any third party as being one as husband and wife. Having determined that the second marriage involved in this case is not covered by the exception to the requirement of a marriage license, it is void ab initio because of the absence of such element. Do children from prior marriage have the personality to file a petition to declare their fathers marriage void after his death? The Supreme Court said, Yes. Contrary to respondent judges ruling, Article 47 of the Family Code cannot be applied even by analogy to petitioners action for declaration of nullity of marriage. The second ground for annulment of marriage relied upon by the trial court, which allows the sane spouse to file an annulment suit at any time before the death of either party is inapplicable. Article 47 pertains to the grounds, periods and persons who can file an annulment suit, not a suit for declaration of nullity of marriage. The Code is silent as to who can file a petition to declare the nullity of a marriage. Voidable and void marriages are not identical. A marriage that is annullable is valid until otherwise declared by a court; whereas a marriage that is void ab initio is considered as having never to have taken place (Suntay vs. Cojuangco, 101 SCAD 1161, 300 SCRA 760 [1998]) and cannot be the source of rights. The first can be generally ratified or confirmed by free cohabitation or prescription while the other can never be ratified. A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage can be attacked collaterally. Consequently, void marriages can be assailed only during the lifetime of the parties and not after the death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid. That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a voidable marriage can assail it but any proper interested party may attack a void marriage. Void marriages have no legal effects except those declared by law concerning the properties of the alleged spouses, regarding coownership or ownership through actual joint contribution (Articles 148-149, Family Code; Article 144, New Civil Code), and its effect on the children born to such void marriages as provided in Article 50 in relation to Articles 43 and 44 as well as Articles 51, 53 and 54 of the

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Family Code. On the contrary, the property regime governing voidable marriage is generally conjugal partnership and the children conceived before its annulment is legitimate. (Note: With A.M. No. 02-11-10-SC only the parties to the marriage can assail the validity of their marriage). Contrary to the trial courts ruling, the death of petitioners father extinguished the alleged marital bond between him and respondent. The conclusion is erroneous and proceeds from a wrong premise that there was a marriage bond that was dissolved between the two. It should be noted that their marriage was void; hence, it is deemed as if it never existed at all and the death of either extinguished nothing. Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish the nullity of a marriage. (Dayat vs. Amante, 77 SCRA 338; Weigel vs. Sempio-Diy, 141 SCRA 499; People vs. Mendoza, 95 Phil. 845; People vs. Aragon, 100 Phil. 1033). A void marriage does not require a judicial decree to restore the parties to their original rights or to make the marriage void but though no sentence of avoidance be absolutely necessary, yet as well for the sake of good order of society as for the peace of mind of all concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction. (35 Am. Jur. 219-220). Under ordinary circumstances, the effect of a void marriage, so far as concerns the conferring of legal rights upon the parties, is as though no marriage had ever taken place. And therefore, being good for no legal purpose, its invalidity can be maintained in any proceeding in which the fact of marriage may be material, either direct or collateral, in any civil court between any parties at any time, whether before or after the death of either or both the husband and the wife, and upon mere proof of the facts rendering such marriage void, it will be disregarded or treated as non-existent by the courts. It is not like a voidable marriage which cannot be collaterally attacked except in direct proceeding instituted during the lifetime of the parties so that on the death of either, the marriage cannot be impeached, and is made good ab initio. But Article 40 of the Family Code expressly provides that there must be a judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage (Apiag vs. Cantero, 79 SCAD 327, 268 SCRA 47; Atienza vs. Judge Brillantes, Jr., 312 Phil. 393, 60 SCAD 119) and such absolute nullity can be based only on a final

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judgment to that effect. (Domingo vs. CA, 44 SCAD 955, 226 SCRA 572). For the same reason, the law makes either the action or defense for the declaration of absolute nullity of marriage imprescriptible. (Art. 39, Family Code as amended by E.O. Nos. 209 and 227, S. 1987 and R.A. No. 8533). Corollarily, if the death of either party would extinguish the cause of action or the ground or defense, then the same cannot be considered imprescriptible. However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolutely nullity. For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause on the basis of a final judgment declaring such previous marriage void in Article 40 of the Family Code connotes that such final judgment need not be obtained only for the purpose of remarriage. Observation: From a reading of the law and the decision of the Supreme Court in Nial vs. Bayadog, the cohabitation of the spouses in a marriage without a license must be a continuous one, which means that it must be for an uninterrupted period of five (5) years immediately prior to the day of the celebration of the marriage. To illustrate, A and B who are capacitated to marry each other and without any legal impediment to marry one another lived together as husband and wife without the benefit of marriage from 1985 to 1987. They separated. From 1989 to 1991, they decided to live together again without the benefit of marriage and separated again. In 1997 up to now 2001, they are still living together as husband and wife without the benefit of marriage and without any legal impediment to marry one another. The question is whether they can contract marriage without the benefit of a marriage license considering that they have been living together for more than five (5) years. A and B cannot get married without a marriage license. They do not fall under the exceptional case because while the totality of the period of their cohabitation is for more than five (5) years, yet,

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the 5-year period is not continuous. It is a broken period. What the law and jurisprudence require is a continuous and unbroken period of cohabitation, otherwise, if they get married without a license, the marriage would be void ab initio. It must be recalled that the type of marriage referred to by law is valid as an exception to the general rule because it is valid inspite of the absence of a marriage license but considering that it is only an exception, the law must be restrictively construed that without complying with the requirements the marriage cannot be considered valid. Mere non-recording of the marriage would not make it void. The law requires that a license must first be issued before the celebration of the marriage. Its recording is not a requisite for its validity. In fact, a marriage is valid even without the marriage contract. What is important is that, it was celebrated. The parties need not even have the marriage contract, yet the marriage is still valid. The only purpose of the recording of the marriage is for expediency. Its recording is not a requisite of marriage. In Geronimo vs. CA, et al., G.R. No. 105540, July 5, 1993, 43 SCAD 311, it was the contention of the petitioner that there was no marriage license obtained by the spouses Esman because the copies of the marriage contract did not state the marriage license number. Is the contention correct? No. The flaw in such reasoning is all too obvious. This was refuted when respondent presented a copy of the marriage contract on file with the National Archives and Records Section where the marriage license number does appear. The evidence adduced by the petitioner could only serve to prove the non-recording of the marriage license number but certainly not the non-issuance of the license itself. If the marriage license came after the solemnization of the marriage, the same is void. (People vs. Lara, [CA] L-12588-R, February 15, 1955). However, even if illegally obtained, if there is a marriage license, it is still valid. (People vs. Babu, 4506, Supp. No. 5, p. 88). Marriages of exceptional character. Not all marriages without marriage licenses are void. The law recognizes the validity of certain marriages even without marriage

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license, like, those in Articles 27, 28, 31, 32, 33, 34 of the Family Code. Defect in essential requisites. The law makes a cross reference to Article 45 which enumerates the voidable marriages. If there is any vitiation of consent of a party, like fraud, violence, intimidation, undue influence, physical incapacity or affliction with a sexually-transmissible disease or that one has not obtained the consent of the parents, the marriage is voidable. Such defects however may be cured if the parties freely cohabit or if the action has already prescribed because Article 47 of the Family Code prescribes the period of five (5) years as a rule within which the aggrieved party must move for the annulment. If there is irregularity in the formal requisites, that would only make the party or parties liable criminally, civilly or administratively. An illustration of this situation is where a party connived with the Local Civil Registrar in the issuance of a marriage license without compliance with the 10-day publication requirement of the application for marriage license. While this is an irregularity, the same does not go into the validity of the marriage. If the license was issued one (1) day after it was applied for, the marriage is still valid. The irregularity does not go into the heart of the marriage, or it does not affect its validity, but it can subject the party or even the Local Civil Registrar to criminal, administrative liability, or civil responsibility. Thus, in the case of Navarro vs. Judge Domagtoy, supra, it was ruled that despite the fact that the judge who solemnized the marriage was a resident of a municipality different from the place where he was serving as a judge, and yet solemnized it at his residence, the Supreme Court still upheld the validity of the marriage because the requirement of authority to solemnize marriage is only a formal requisite of marriage, not an essential one. Any defect in any of the formal requisites does not render the marriage void, it is valid but without prejudice to the three-fold responsibility of the judge who solemnized the marriage, like criminal, civil and administrative liability. The judge was fined. Any act that vitiates consent such as force, intimidation, or fraud does not make the marriage void, but only voidable. But it must be recalled that an action for annulment has to be brought within a certain period of time and by the aggrieved party only. He who used

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the act that vitiated the consent of the other cannot later on file an action for annulment of marriage. (People vs. Aragon, 90 Phil. 257). While a marriage ceremony is required (Art. 6, FC), the law does not prescribe a specific form of ceremony. What the law requires is the personal appearance of the contracting parties before the solemnizing officer where they have to declare that they are taking each other as husband and wife. This is a requirement that affects the validity of the marriage if celebrated in the Philippines because it is not possible to have a marriage by proxy. But if a marriage by proxy is celebrated abroad and valid there as such it is valid in the Philippines because of the doctrine of lex loci celebrationis. In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. Furthermore, Article 8 of the Family Code requires that the marriage shall be solemnized publicly in the chamber of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. Public ceremony is necessary because the state takes active interest in the marriage, it being an inviolable social institution. The public celebration likewise notifies people who may know of any impediment of the parties to marry, for the protection of the innocent party as well as the State. Article 5. Any male or female of the age of eighteen years (18) or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. (54a) Rules on validity of marriage. The marriage is valid if there is consent of the parents. Without the consent of the parents, the marriage would only be voidable. If it is without the consent of the parties, the marriage is void. If the parties to a marriage are below the ages of eighteen (18), even with the consent of their parents, the marriage would still be void. This is because they lack the legal capacity to marry.

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Note that the impediment referred to in Article 37 of the Family Code pertains to blood relationship between the contracting parties, whether legitimate or illegitimate. If a grandfather marries a granddaughter, the marriage is void because it is incestuous. This is true even if the relationship is legitimate or illegitimate and no matter how far the relationship is. As long as the relationship is in the direct line, the marriage is void. The impediments in Article 38 of the Family Code also make the marriage void by reason of public policy. Filipinos related within the fourth civil degree of consanguinity cannot marry in the Philippines. The marriage is void. Even if they get married outside the Philippines where the marriage is valid there as such, the same is void because of Articles 26 (par. 1) and 38(1) of the Family Code. What determines the capacity to marry is the national law of the Filipino and not the law of the place where the marriage was celebrated. Under Article 15 of the Civil Code, laws relating to family rights and duties and to the status, condition and legal capacity of persons shall be binding upon them even if they are living abroad. Reason for invalidity if below 18 of age. The basic reason why the law requires that the parties to a marriage must have attained the age of 18 years is that extreme youth may not lend stability to the marriage and the family. Solidarity of the family is a concern of the State as expressed in the Constitution making it a policy of the State to preserve the family as a basic social institution. Marriages have failed, families have been broken because of extreme irresponsibility of the spouses due to age. So, the law requires some degree of maturity. In fact, the requirement that they must be at least 18 years is a departure from the Civil Code provisions requiring that the woman then must be at least 14 years of age and the man 16 years of age at the time of the marriage. The framers of the Family Code felt that the 14-16 year requirement was too low as the parties were too young. Illustration: A and B, both 17 years of age, Filipino citizens, got married. The marriage is void because of lack of capacity to marry. This is true even if the marriage was celebrated abroad where the marriage was valid there as such. The

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reason is that, the capacity of Filipino citizens to marry is determined by Philippine law and not the law of the place where the marriage was celebrated. (See Art. 15, New Civil Code). Suppose A in the problem above was 27 years old and B was only 17 years of age, the marriage would still be void because the law requires that both contracting parties must have legal capacity to contract marriage. Gender requirement. The law requires that the parties to a marriage must be a male and a female. This reason is obvious, for two males or two females cannot reproduce. It must be remembered that no less than the law itself says that marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. (Art. 1, Family Code). When we speak of conjugal and family life, we refer to reproduction of children as one of the purposes of marriage. In fact, Bishop, in his commentaries on Marriage, Divorce and Separation said that marriage is for the establishment of families, the multiplication and education of species. It must be recalled that one of the ends of marriage is the reproduction or rearing of children, that is why, marriage is for the establishment of conjugal and family life. This rule must therefore be considered with Article 68 of the Family Code which mandates among other things that the husband and wife shall live together. Living together is not limited to the literal act of living together under one roof. It is not enough that they stay together or sleep together on one bed. Living together must be construed with the end of marriage, that is for the establishment of conjugal and family life. The reproduction of children and rearing the same is basic in marriage. But how can there be reproduction of children as a rule, if there is no consented sex, for marriage is the license to have sex with ones spouse. Thus, if one spouse refuses to provide sex to the other, such refusal being constant and senseless, it can be said that he/she is refusing to perform his/her essential marital obligation. Senseless and protracted refusal is equivalent to psychological incapacity, hence, in Tsoi vs. CA, G.R. No. 119190, January 16, 1997, 78 SCAD 57, the Supreme Court declared as void the marriage of a man and a woman when the man refused to provide sex to his wife for a period of ten (10) months despite the marriage.

Art. 6

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Article 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of the said party, which fact shall be attested by the solemnizing officer. (55a) Ceremony in marriage. The law provides that there are no prescribed forms of ceremony in a marriage. The solemnizing officer may do it as he pleases depending upon how he would perform it. But it is required that the parties must personally appear before him and declare that they take each other as husband and wife. They cannot send somebody else to declare for them that they take each other as husband and wife. It is for this reason that one of the parties cannot execute a special power of attorney for a friend, for the latter to appear for him during the celebration of the marriage. But while the law requires that there be two (2) witnesses while they declare that they take each other as husband and wife, the absence of such witnesses does not make the marriage void, because it is merely a formal requirement that does not go into the validity of the marriage. Actual marriage ceremony is necessary. While the form of ceremony is immaterial, what is important is that, there is actual solemnization of the marriage, otherwise, it would be void even if it is just a formal requisite of marriage. The law says that its total absence makes the marriage void. Hence, in Morigo vs. People, G.R. No. 145226, February 6, 2004, it was said that the marriage was void and never existed in the eyes of the law when the parties merely signed the marriage contract without ceremony. Their act of signing without the requisite of marriage ceremony was merely

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a private act. There is not even a necessity to have it declared void before a party to said marriage can contract a subsequent marriage. Proxy marriage. A proxy marriage in the Philippines is void if celebrated here. This is so because the law requires the personal presence of the parties before the solemnizing officer. Furthermore, the law requires as one of the requisites of a valid marriage that a ceremony should take place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife. (Art. 3, Family Code). But the question is that, if that proxy marriage is celebrated abroad and valid there as such, is it valid in the Philippines? The answer is yes. A scrutiny of Article 26, paragraph 1 of the Family Code says that all marriages solemnized outside of the Philippines in accordance with the laws in force in the country where they were solemnized and valid there as such, shall also be valid in this country, except those prohibited under Arts. 35(1), (4), (5), and (6), 36, 37, 38. So, if the law of the place of celebration/solemnization allows the validity of a proxy marriage, even if it is void in the Philippines, if valid where celebrated, it is valid here. This is so because a careful scrutiny of the law referred to above which enumerates the void marriages even if valid where they were celebrated, does not reveal that if the marriage abroad between two Filipinos was by proxy, it is void in here. In that case, Philippine law recognizes its validity by way of applying the general principle that if valid where celebrated, it is valid here and the rule of expression unius est exclusio alterius applies. What the law excludes, it does not include. Finally, this is a reaffirmation of the principle that in case of doubt, the law leans towards the validity of the marriage as a means of preserving it due to the public policy that the State takes interest in the marriage as the foundation of the family and society. Declaration in a certificate. After the solemnization of the marriage, the parties are required to sign a marriage certificate with the two (2) witnesses. If the marriage was solemnized under articulo mortis, one is unable to sign the certificate, the law makes it sufficient for one of the witnesses to write the name of such party, but such a fact must be attested by the solemnizing officer.

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Article 7. Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the courts jurisdiction; (2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officers church or religious sect; (3) Any ship captain or airplane chief only in the cases mentioned in Article 31; (4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; or (5) Any consul-general, consul or vice-consul in the case provided in Art. 10. (56a) Authority of mayors. Mayors are now authorized to solemnize marriage. They have been excluded by the Family Code, but they are now authorized by the Local Government Code to solemnize marriages (Sec. 444 [as to municipal mayors] and Sec. 455 [as to city mayors], R.A. No. 7160). A mayor of Manila cannot solemnize a marriage in Pasay City because he has no authority there. His authority can only be exercised in Manila. If he performs the ceremony outside of his territorial jurisdiction, the marriage is void for lack of authority. Even a vice mayor, acting as mayor; or a member of the Sangguniang Bayan can solemnize marriage because if he is an acting mayor, he can exercise the powers of the mayor. Illustration: Dr. Robert Castro, the Vice-Mayor of Dingras, Ilocos Norte was the acting Mayor when Mayor Wilfredo Parado went to Hawaii. As acting mayor, he can exercise the powers of a mayor, including the authority to solemnize marriages. If both the Mayor and Vice-Mayor are abroad and Mrs. Marjorie Baquiran, the number one member of the Sangguniang Bayan is the acting Mayor, she can likewise

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solemnize marriages because she is also performing the duties and functions of a mayor. In all of these cases, the marriages are perfectly valid, as the solemnizing officer is with authority to do so. Putative marriage is valid. In De Cardenas vs. Cardenas, L-8218, December 15, 1955, the SC held that a person who wants to impugn the validity of the marriage due to the fact that the solemnizing officer had no authority to solemnize, must prove the same. Note that this case of Cardenas vs. Cardenas finds more applicability now, in view of the second paragraph of Article 35 of the Family Code which declares, by way of exception, the validity of marriage solemnized by a person not authorized to solemnize marriage where the parties, or anyone of them, was unaware of the officers lack of authority. This is otherwise known as a putative marriage, one where the solemnizing office has no authority but the lack of authority is not known to the parties. In the case of Navarro vs. Judge Hernando C. Domagtoy, A.M. No. MTJ-96-1088, July 19, 1996, 72 SCAD 328, the Supreme Court declared as valid a marriage solemnized by a judge outside of his territorial jurisdiction, saying that the authority to marry is a mere formal requirement; hence, if any irregularity exists, it merely subjects the person to administrative, criminal or civil liability. This is true even if the law says within the territorial jurisdiction of the court. Literally, it would seem that a judge cannot solemnize a marriage outside of the territorial jurisdiction of the court, but the Supreme Court in a case ruled that the requirement is only formal. The defect is only a mere irregularity that does not affect the validity of the marriage. Case: Rodolfo Navarro vs. Judge Hernando C. Domagtoy A.M. No. MTJ-96-1088 July 19, 1996, 72 SCAD 328 Facts: An administrative complaint was filed by Mayor Rodolfo Navarro of Dapa, Surigao del Norte against Judge Domagtoy for

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having solemnized the marriage of Floriano Dador Sumaylo and Gemma D. del Rosario outside of his courts jurisdiction. He is a Municipal Circuit Judge of Sta. Monica-Burgos, Surigao del Sur. The wedding was solemnized at his house in Dapa, outside of his territorial jurisdiction. In trying to exculpate himself, he invoked Article 8 of the Family Code that marriage can be solemnized elsewhere if there is a request of the parties. Held: The issue involves the solemnization of a marriage ceremony outside the courts jurisdiction, covered by Articles 7 and 8 of the Family Code, thus: Art. 7. Marriages may be solemnized by: (1) Any incumbent member of the judiciary within the courts jurisdiction; xxx xxx x x x Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul, or vice-consul, as the case may be, and not elsewhere, except in the cases of marriages contracted at the point of death or in remote places in accordance with Article 29 of this Code, or where both parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. Respondent judge points to Article 8 and its exceptions as the justification for his having solemnized the marriage between Floriano Sumaylo and Gemma del Rosario outside of his courts jurisdiction. As the aforequoted provision states, a marriage can be held outside of the judges chambers or courtroom only in the following instances: (1) at the point of death; (2) in remote places in accordance with Article 29; or (3) upon request of both parties in writing in a sworn written statement to this effect. There is no pretense that neither Sumalo nor del Rosario was at the point of death or in a remote place. Moreover, the written request presented addressed to the respondent judge was made by only one party, Gemma del Rosario. More importantly, the elementary principle underlying this provision is the authority of the solemnizing judge. Under Article 3,

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one of the formal requisites of marriage is the authority of the solemnizing officer. Under Article 7, marriage may be solemnized by, among others, any incumbent member of the judiciary within the courts jurisdiction. Article 8, which is a directory provision, refers only to the venue of the marriage ceremony and does not alter or qualify the authority of the solemnizing officer as provided in the preceding provision. Non-compliance therewith will not invalidate the marriage. A priest who is commissioned and allowed by his local ordinary to marry the faithful, is authorized to do so only within the area of the diocese or place allowed by his bishop. An Appellate Court Justice or a Justice of this Court has jurisdiction over the entire Philippines to solemnize marriages, regardless of the venue, as long as the requisites of the law are complied with. However, judges who are appointed to specific jurisdictions, may officiate in weddings only within said area and not beyond. Where a judge solemnizes a marriage outside his courts jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which while it may not affect the validity of the marriage, may subject the officiating official to administrative liability. (Article 4, Family Code). Inasmuch as respondent judges jurisdiction covers the municipalities of Sta. Monica and Burgos, he was not clothed with authority to solemnize a marriage in the municipality of Dapa, Surigao del Norte. By citing Article 8 and the exceptions therein as grounds for the exercise of his misplaced authority, respondent judge again demonstrated a lack of understanding of the basic principles of civil law. Authority of SB Justices to solemnize marriage. As can be seen from Article 7, Family Code, Justices of the Sandiganbayan and Judges of the Court of Tax Appeals can now solemnize marriages. Ambassadors cannot solemnize marriages anymore. They are excluded by the law. The fact that a person is a priest, minister, rabbi, imam does not by itself authorize him to solemnize marriages. He must be authorized by his church or religious sect and duly registered with the civil registrar general. This must be distinguished from the judges and justices, mayors and consuls who are authorized to solemnize

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marriages by virtue of their offices. This authority is granted to them by law as an additional function and incidental to their duties as such. Consuls or consuls-general can solemnize marriages only in the areas where they hold office. Illustration: A is the consul-general of the Philippines to Hawaii. He has a residence in Dingras, Ilocos Norte. While vacationing therein, he solemnizes the marriage of X and Y. The marriage cannot be valid because A has no authority to solemnize marriages outside of the place where he holds office. A military commander can solemnize marriages only in cases of articulo mortis. Illustration: A, a soldier belongs to a military unit headed by B. While in a place of military operation, A was shot and is at the point of death, so C, his girlfriend requested B to solemnize their marriage. The marriage is valid even without a marriage license because B is authorized to solemnize the marriage under the situation. If in the problem above, there was a priest or a chaplain assigned and he was even one of the witnesses, the marriage is not valid because the military commander can only have the authority to solemnize the marriage in the absence of the chaplain. If in the problem above, it was C, the girlfriend of A who was in articulo mortis, the military commander can likewise solemnize the marriage in the absence of the chaplain assigned. The rule is so because it does not require that the member of the military alone be in articulo mortis. Such marriage is allowed even if a civilian is the one under articulo mortis. But if A, after having been shot was brought to a hospital outside of the military operation, the marriage would be void since the law requires that the marriage

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must be made during military operation and within the area of military operation. The ship captain or airplane chief can solemnize marriages in articulo mortis. The authority exists even while the vessel is sailing or the plane is flying, or even in stopovers. Marriage contracted in good faith. A question has been asked as to whether a marriage may be valid if solemnized by one who has no authority at all. An example is when a man and a woman, with capacity and no legal impediment to marry, with a marriage license go to the City Hall of Manila. A fixer approaches them and since they are really looking for someone to solemnize their marriage, they are brought to a room where somebody who introduces himself as a judge solemnized their marriage. They do not know the person but they were made to believe that he is a judge, but the truth is, he is not a judge and they relied upon such representation. The question now is, is the marriage valid? The answer is in the affirmative because it is a marriage contracted in good faith. This is otherwise known as a putative marriage, one which is ordinarily void because it lacks one of the requisites of a valid marriage, that is, the authority of the solemnizing officer, but valid because of the good faith of the parties of the absence of authority of the solemnizing officer. Neither of them can question the validity of the marriage; or if one of them was aware that the solemnizing officer had no authority, he cannot question the validity of the marriage as he was in bad faith. The law does not allow a person to benefit out of his own wrongdoing. Article 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted at the point of death or in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. (57a) The law requires a public ceremony of the marriage. This is one way of intervention by the State in order to ensure that if one knows

Art. 9

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of a legal impediment to the marriage, then he should manifest it to the solemnizing officer during the celebration. If there is one who manifests such legal impediment, the solemnizing officer would stop the ceremony. There should be publicity of the marriage because it is of interest to society and in order that any impediment to the marriage may be made known at the very moment of its celebration. However, as publicity is not an essential requisite, a violation of this provision will not render the marriage void. (Capistrano, Civil Code of the Philippines, 1950 ed., p. 82). Even as the law requires that the marriage ceremony be made public as it must be done publicly in the chambers of the judge, or in open court, in the church, chapel or temple, yet, if there is a written request of the parties that it be solemnized elsewhere in a sworn statement, the same can be done. An example is a situation where the parties requested that it be solemnized at a function room of the Manila Hotel, then, it can be solemnized therein. Again, even if there is no such request, or even if it is not in writing or it is not in a sworn statement, still the marriage is valid as such requisite is not an essential one. The total absence of the same does not go into the validity of the marriage. Let us say for example that the marriage of A and B was solemnized by the mayor at the town plaza without any request and during the period of the political campaign, the marriage is valid provided that all the essential requisites are present. Even if no request was made, it is still valid as the failure to comply with that formal requirement does not affect the validity of the marriage.

Article 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title. (58a) The law requires that the marriage license shall be issued in the place of habitual residence of the parties. This is a formal requirement that a violation of the same does not render the marriage void. It is merely an irregularity which if committed may result in the liability of the Local Civil Registrar who issued it knowing that the applicants for a marriage license do not reside in the place where they applied for a license.

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Arts. 10-11

Illustration: A and B, both residents of San Pedro, Laguna, applied for and were issued a marriage license in Bian, Laguna. It appears to be violative of Article 9 of the Family Code, but since it is merely a formal requirement, the marriage would still be valid if celebrated with the use of that license. There is however, an exception to the rule, that is, when the marriage is one of exceptional character where there is no need for a marriage license. Article 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. (75a) From a reading of the law, the consul-general, consul, or viceconsul acts as a local civil registrar for Filipinos abroad. This is so because the issuance of the marriage license to Filipinos abroad is done by him. He also solemnizes marriages between Filipino citizens abroad. If the marriage is solemnized by a consul or vice-consul, there is no need for the contracting parties, who are Filipinos, to secure a certificate of legal capacity to marry. The requirement however lies if the marriage is to be solemnized by another person other than the consul or consul-general or vice-consul. The rule applies only if the marriage is solemnized by a consul and the parties are citizens of the Philippines. Article 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: (1) (2) (3) Full name of the contracting party; Place of birth; Age and date of birth;

Art. 12

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(4)

Civil status;

(5) If previously married, how, when and where the previous marriage was dissolved or annulled; (6) (7) (8) (9) Present residence and citizenship; Degree of relationship of the contracting parties; Full name, residence and citizenship of the father; Full name, residence and citizenship of the mother; and

(10) Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years. The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection with the securing of the marriage license. (59a) Article 12. The local civil registrar, upon receiving such application, shall require the presentation of the original birth certificates, or in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the persons having custody of the originals. These certificates or certified copies of the documents required by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity. If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of the destruction or loss of the original, or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of the person having custody thereof at least fifteen days prior to the date of the application, such party may furnish in lieu thereof his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good reputation in the province or the locality.

256

PERSONS AND FAMILY RELATIONS

Arts. 13-14

The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. (60a) Article 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstances and his or her actual civil status and the name and date of death of the deceased spouse. (61a) The law merely enumerates the contents of an application for a marriage license. More specifically, the law requires the age and civil status of the applicants so that if the applicant is not of age as required by law, or if there is legal impediment as shown by the application, the Local Civil Registrar would still issue the license, but with a notation of the same. It is also required that if there was a previous marriage and it has been annulled or nullified, the applicant concerned must attach it to the application in order to prove his capacity to contract marriage. The law further requires the presentation of the original of their birth certificates, or if not available, copies attested by the custodian of the same. Such presentation is not necessary if the parents appear before the local civil registrar and swear the correctness of the lawful age of the parties as stated in the application. If either of the parties was previously married but the spouse is already dead, he/she is merely required to produce the certificate of death of the spouse. If he cannot produce it, he/she may execute an affidavit setting forth his/her actual civil status and the name and date of death of the deceased spouse. Article 14. In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the ages of eighteen and twenty-one, they shall, in addition to the

Art. 15

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requirements of the preceding articles, exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested in writing by the interested party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications. (61a) If the parties to the marriage are between the ages of 18 and 21, they must secure the consent of their parents, otherwise it is voidable. (Art. 45[1], Family Code). Such consent in the form of a written instrument by the person concerned who personally appears before the local civil registrar or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized to administer oaths. It is required that such manifestation of consent be attached to the application for marriage license. The minimum marriageable age now is 18. Both parties must be eighteen at the time of the celebration of the marriage. The law also requires the consent of their parents to be valid. So that, even if the parents consented, if one of the parties or both of them were below the age of eighteen (18) still the marriage is void ab initio. If A and B got married before a person who is not authorized to solemnize marriages but either or both believed in good faith that he could solemnize marriages, the marriage is valid. The law seeks to preserve the marriage bond. If one of the parties was aware of the lack of authority of the solemnizing officer, he or she could not file an action for declaration of nullity of the marriage. He could not benefit out of his own wrongdoing. Article 15. Any contracting party between the age of twentyone and twenty-five shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefor. A sworn statement by the contracting parties to the effect that such advice has been sought,

258

PERSONS AND FAMILY RELATIONS

Art. 16

together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement. (62a) Under Article 15 of the Family Code, if the parties are between the ages of 21 and 25, they need parental advice. It provides too that if not secured or if unfavorable, the marriage license shall not be issued until after three (3) months following the publication of the application for marriage license. They are also required to state those facts in an affidavit. If the marriage license is issued without waiting for the lapse of the three-month period, still the marriage is valid, but the party and the public officer effecting such issuance may be subjected to criminal and administrative responsibility. The parties are also required to attach to their application for a marriage license a certification that they have undergone marriage counseling before a duly accredited agency. Failure to attach it shall cause the suspension of the issuance of the marriage license for a period of three (3) months. Article 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this code or a marriage counsellor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counseling. Failure to attach said certificate of marriage counseling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage. Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counseling referred to in the preceding paragraph. (n) The mere fact that the advice was not given and the marriage was solemnized does not make the marriage void. The formalities required by law must however be complied with.

Arts. 17-19

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The issuance of the marriage license even before the lapse of the 90-day period if no advice was granted does not make the marriage void. It is still valid, but criminal, civil or administrative sanctions may be imposed on the officer issuing the license. Article 17. The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. (63a) After the receipt of the application for marriage license, the local civil registrar shall prepare a notice which shall be posted for at least ten (10) days at the bulletin board outside of his office in conspicuous places or even in places accessible to the public. It calls upon anyone who has any knowledge of any legal impediment of either or both of the contracting parties to report to the local civil registrar. This notice is one of the modes by which the State interferes in the marriage to prevent violations of the marriage law. It is noted, however, that if the local civil registrar does not publish the application and still, he issues the license, the marriage is still valid, because after all, publicity is not an essential requisite of marriage. The said public officer may, however, be held criminally or administratively liable. Article 18. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for a marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interested party. No filing fee shall be charged for the petition nor a bond required for the issuance of the order. (64a) Article 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage license. No other sum shall be collected in the nature

260

PERSONS AND FAMILY RELATIONS

Arts. 20-21

of a fee or tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is, those who have no visible means of income or whose income is insufficient for their subsistence, a fact established by their affidavit or by their oath before the local civil registrar. (65a) Note that if the local civil registrar has knowledge of any legal impediment of the parties or if one is brought to his knowledge by anyone, he would just note down the same in the application. However, if there is a court order preventing him from issuing it, then, he would not issue it. Article 20. The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it. The expiry date shall be stamped in bold characters on the face of every license issued. (65a) The rule prescribes a period within which the parties must use the marriage license. This is mandatory because the law declares the automatic cancellation of the license upon the expiration of the period of one hundred and twenty days from the date of issue. If the marriage is solemnized after one hundred twenty (120) days from the date of the issuance of such license, the marriage is void for lack of a marriage license. (See Arts. 20 and 3, Family Code). The law allows the use of the marriage license anywhere in the Philippines. So, if a marriage license was obtained in Manila, it can be used in Ilocos Norte provided that the 120-day period has not yet lapsed. Article 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials. Stateless persons or refugees from other countries shall in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage. (66a)

Art. 22

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261

The reason for the rule is that the capacity of foreigners to marry is determined by their personal law or national law. The certificate will ensure that the foreigner is capacitated to marry. The rule is that if they are allowed to marry under their national law, the marriage is valid, except 1) 2) immoral, bigamous or polygamous marriages; immorally considered incestuous marriages; a) b) between ascendants and descendants of any degree, legitimate or illegitimate; collateral line, between brothers and sisters of the full or half-blood, whether the relationship be legitimate or illegitimate.

The marriage is still valid even without the said certificate of legal capacity. This is not one of the requirements of a valid marriage. It is a mere added requirement before a marriage license is issued. But if it turns out that the foreigner is not really capacitated, then, the marriage is not valid because of lack of capacity. A subsequent issuance of such certificate may be an evidence to declare such marriage void. If a foreigner is a refugee or a stateless person, then a mere affidavit stating the circumstance of his legal capacity would be sufficient. The reason for the latter is obvious, as no diplomatic or consular official would issue such certificate. Article 22. The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state: (1) (2) The full name, sex and age of each contracting party; Their citizenship, religion and habitual residence;

(3) The date and precise time of the celebration of the marriage; (4) That the proper marriage license has been issued according to law, except in marriages provided for in Chapter 2 of this Title; (5) That either or both of the contracting parties have secured parental consent in appropriate cases;

262

PERSONS AND FAMILY RELATIONS

Arts. 23-25

(6) That either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; and (7) That the parties have entered into a marriage settlement if any, attaching a copy thereof. (67a) The law merely states the contents of the marriage certificate. Article 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in a place other than those mentioned in Article 8. (68a) Article 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for marriage licenses shall be exempt from documentary stamp tax. (n) Article 25. The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. He shall record in said book the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary. (n) The solemnizing officer has to give the parties a copy of the marriage certificate. He is required to send a copy of the certificate to the local civil registrar. This is equivalent to registration or recording. But mere non-recording of the marriage does not make it void. It is not one of its essential requisites. A copy of the document can be shown to prove it.

Art. 26

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263

Article 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (As amended by E.O. No. 227) Rules on foreign marriages of Filipinos. If a marriage is celebrated between Filipino citizens in a foreign country and valid there as such, generally, it is valid in the Philippines. There are however, exceptions to the rule as cited in Articles 35(1, 4, 5, and 6), 36, 37 and 38 of the Family Code. The second paragraph of Article 26 of the Family Code has cured the injustice under the old principles in the Civil Code for, while before, if a Filipina married a foreigner and the latter obtained a decree of divorce in his own country, the Filipina was still considered married because Article 15 of the Civil Code mandated that she was still married since the law that governed her legal capacity and status was Philippine law. But such an injustice has been cured where the law now allows her to remarry. Strict application of Rule 26. The rule as contemplated by the framers of the Family Code is that, the marriage must be a mixed marriage, between a foreigner and a Filipino in order that Article 26, paragraph 2 may apply and that it must have been mixed from the very beginning. If it was mixed after its celebration, the law does not apply. It must be noted that despite such intention of the framers of the Family Code, the Supreme Court ruled otherwise in Republic vs. Orbecido III, October 5, 2005 which will be discussed elsewhere. It is also a requirement that it must have been the foreigner who obtained a divorce decree. If it were the Filipino who obtained the divorce decree, the law does not apply. The rule laid down in paragraph 2 of Article 26 of the Family Code impliedly recognizes the effect of divorce obtained in a foreign country but only in a limited sense. Such a recognition is merely

264

PERSONS AND FAMILY RELATIONS

Art. 26

intended to cure an injustice to a Filipino where after having been divorced by the foreigner spouse, he or she would still be considered married. The rule in paragraph 2, Article 26 could have been precipitated by the doctrine in Van Dorn vs. Romillo, G.R. No. 68470, October 8, 1985. In such case, a Filipina got married to a foreigner and obtained a divorce decree from the courts of the country of her husband. The wife came back to the Philippines, engaged in business and became successful. Later on, the foreigner came to the Philippines and tried to enforce his rights as a husband, as administrator of the conjugal partnership and his rights as an heir. The Supreme Court ruled out his contentions. It said that while public policy and our concept of morality abhor absolute divorce, because of the nationality principle adhered to under Article 15 of the Civil Code, nonetheless, the absolute divorce obtained abroad may be recognized in the Philippines provided it is valid according to his national law. (Van Dorn vs. Romillo). In view of this, the Supreme Court said that an American national who had divorced his Filipina wife cannot justifiably maintain that, under our laws, the Filipina, despite the divorce, has to be considered still married to him and still subject to a wifes obligation. A Filipina should not be discriminated against in her own country if the ends of justice are to be served. She should not be obliged to live with him, to support him, or to observe respect and fidelity to the ex-husband. The latter should not continue to be one of her heirs with possible rights to the conjugal properties. Note, however, that this case is an exception to the rule especially so that it was the Filipino who commenced the divorce proceedings. Unfair situation in the Civil Code remedied. There was an unfair situation in our law under the Civil Code which the Family Code sought to remedy and which was remedied in Van Dorn vs. Romillo and Pilapil vs. Ibay-Somera. Illustration: X, a Filipina married Y, a foreigner. The foreigner left her and divorced her in his country, capacitating him to marry again under his national law. Under the old law,

Art. 26

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265

whether it was a mixed marriage or not, the Filipino was not capacitated to remarry in case he/she was divorced by the foreigner spouse. This is due to the strict rule in Article 15 of the Civil Code and the principle that a divorce obtained abroad was contrary to morals. This has left the Filipino in an unfair situation, for while the former spouse could remarry, yet, he/she could not. So, the Supreme Court in Van Dorn and Pilapil gave recognition to the effects of foreign divorces. The Family Code followed with the conditions that: (1) the marriage must be originally a mixed marriage; (2) the divorce must be obtained by the foreigner capacitating him/her to remarry under his/her national law. So that if the foreigner obtains that divorce, the Filipino is likewise capacitated to remarry. But let us say that the parties were originally Filipinos, but after a few years one of them became an American citizen and thereafter, he would obtain a divorce decree capacitating him to remarry, the Filipina cannot remarry under Philipine laws because the marriage was not originally a mixed marriage. This is a flaw in Article 26 that the framers of the Family Code failed to foresee or resolve. If it happens, then, we would return to the former unusual and unfair situation where one of the parties is again left hanging. The better situation is that even if the marriage is not originally a mixed marriage, both must be capacitated to remarry in case a divorce is obtained by the foreigner. But the remedy is for Congress to do. It would seem therefore, that she cannot because Article 26(2) of the Family Code refers only to mixed marriages. Effect is Filipino obtains divorce against a foreigner spouse. As can be clearly gleaned from the law, the effects of a foreign divorce are now recognized in the Philippines but subject to certain conditions. One such situation where the effects of a foreign divorce were recognized is in Pilapil vs. Ibay-Somera, et al., G.R. No. 80116, June 30, 1989, where it was said that when the foreigner divorced the Filipina, the marital relationship was severed. She can no longer be prosecuted for adultery if she cohabits with another man. A Filipina should not be discriminated against in her own country.

266

PERSONS AND FAMILY RELATIONS

Art. 26

Case: Imelda M. Pilapil vs. Hon. Corona Somera, et al. G.R. No. 80116, June 30, 1989 Facts: On September 7, 1979, a Filipina married a German national named Erich Geiling. They lived together as husband and wife but later on separated in fact. Three and a half years later, Geiling filed a petition for divorce in Germany which was granted. On January 15, 1986, he filed two (2) complaints for adultery against her because of an affair with a man named William in 1982 and James in 1983. The case was filed in court but a Motion to Quash was filed but which was denied. Hence, a petition was filed before the Supreme Court contending that the complainant cannot be qualified as an offended party since he has already obtained a final divorce under his national law prior to the filing of the case. Held: Petition is meritorious. Under Article 344 of the Revised Penal Code, the crime of adultery, as well as four other crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been established, with unwavering consistency, that compliance with this rule is jurisdictional, and not merely a formal requirement. (People vs. Lingayen, June 10, 1989). While in point of strict law the jurisdiction of the court over the offense is vested upon it by the Judiciary Law, the requirement for a sworn written complaint is just a jurisdictional mandate since it is that complaint which starts the prosecutory proceeding (Valdepeas vs. People, 16 SCRA 871; People vs. Babasa, 77 SCRA 672) and without which the court cannot exercise its jurisdiction to try the case. Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardians of the offended party. The so-called exclusive and successive rule in the prosecution of the first four offenses above-mentioned do not apply

Art. 26

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267

to adultery and concubinage. It is significant that while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal action for the deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her parents, grandparents, and guardian, such amendment did not include the crimes of adultery and concubinage. In other words, only the offended spouse, and no other, is authorized by law to initiate the action therefor. In view of the above, it follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue as a ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition. It is indispensable that the status and capacity of the complainant to commence the action be definitively established and such status or capacity must indubitably exist as of the time he initiates the action. It would be absurd if his capacity to bring the action would be determined by his status before or subsequent to the commencement therof, where such capacity or status existed prior to but ceased before, or was acquired subsequent to but did not exist at the time of the institution of the case. We would thereby have the anomalous spectacle of a party bringing suit at the very time when he is without legal capacity to do so. The case of State vs. Loftus, 104 NW 906 and 907, applies. In said case, the U.S. Supreme Court said: No prosecution for adultery can be commenced except on the complaint of the husband or wife. (Section 4932, Code). Though Loftus was the husband of the defendant when the offense is said to have been committed, he had ceased to be such when the prosecution was begun; and appellant insists that his status was not such as to entitle him to make the complaint. We have reportedly said that the offense is against the unoffended spouse, as well as the State, in explaining the reason for this provision in the statute and we are of the opinion that the offending spouse must be such when the prosecution is commenced. In short, the status of the complainant in relation to the accused must be determined as of the time of the filing of the com-

268

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Art. 26

plaint. The complainant must be the offended spouse and by this is meant that the complainant is still married to the accused. Since they are already divorced, he has no more capacity to file such action because said divorce and its effects are recognized in the Philippines insofar as he is concerned. (Recto vs. Harden, 100 Phil. 427; Van Dorn vs. Romillo, et al., 139 SCRA 139). The private respondent obtained a valid divorce in his country, the Federal Republic of Germany. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is concerned (Recto vs. Harden), in view of the nationality principle. Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., after a divorce was granted by a United States court between Alice Van Dorn, a Filipina, and her American husband, the latter filed a civil case in a trial court here alleging that her business concern was conjugal property and praying that she be ordered to render an accounting and that the plaintiff be granted the right to manage the business. Rejecting his pretentions, this court perspicuously demonstrated the error of such stance, thus: There can be no question as to the validity of that Nevada divorce in any of the states of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any state of the Union. x x x It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. x x x The Supreme Court said further: Thus, pursuant to his national law, private respondent is no longer the husband of the petitioner. He would have no standing to sue in the case below as petitioners husband who would be entitled to exercise control over conjugal assets. x x x Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no legal stand-

Art. 26

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269

ing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit. The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the divorce proceeding, he obviously knew that there would no longer be a family or marriage vows to protect once a dissolution of the marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family, which is said to be one of the reasons for the particular formulation of our law on adultery (US vs. Mata, 18 Phil. 490) since there would henceforth be no spouse relationship to speak of. The severance of the marital bond had the effect of dissociating the former spouses from each other; hence, the actuations of one would not affect or cast obloquy on the other. The aforecited case of United States vs. Mata, cannot be successfully relied upon by private respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal Code, which punished adultery although the marriage be afterwards declared void, the Court merely stated that the lawmakers intended to declare adulterous the infidelity of a married woman to her marital vows, even though it should be made to appear that she is entitled to have her marriage contract declared null and void, until and unless she actually secures a formal judicial declaration of nullity x x x, because such declaration that the marriage is void ab initio is equivalent to stating that it never existed. There being no marriage from the beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated and within the purview of the decision in said case is the situation where the criminal action for adultery was filed before the termination of the marriage by a judicial declaration of its nullity ab initio. The same rule and requisite would necessarily apply where the termination of the marriage was effected, as in this case, by a valid foreign divorce. Doctrine of lex loci celebrationis. X and Y, both Filipino citizens went to Hongkong. They got married there before a lawyer. Under Hongkong laws the marriage is valid. Is it also valid in the Philippines?

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PERSONS AND FAMILY RELATIONS

Art. 26

Yes, by way of implication from the provision of Articles 26 and 35(2 and 3), Family Code. If the marriage is valid where it was celebrated, it shall also be valid in the Philippines. This is not one of the marriages declared void in the Philippines by law. Authority to solemnize is only a formal requirement that if valid where it was celebrated, it is valid in the Philippines in view of the doctrine of lex loci celebrationis. Article 26, paragraph 1 of the Family Code makes a cross-reference to Articles 35(1), (4), (5), (6); 36; 37; 38. All these laws refer to void marriages that even if they are valid where they were celebrated, still, they are void in the Philippines in view of the controlling rule that what determines the status, condition and legal capacity of Filipinos is Philippine law. (Art. 15, NCC). If the marriage is void because of lack of legal capacity like when the parties or anyone of them is below 18 years, or if it is bigamous or polygamous, or where there was mistake in the identity of a party, or there was no recording of the documents under Articles 52 and 53 of the Family Code; or if one of the parties is suffering from psychological incapacity; or if the parties are related by blood under Article 37, or what is otherwise known as incestuous marriage; or if it is contrary to public policy, the marriage is still void even if valid where celebrated. This is so because the law that determines their validity is Philippine law which binds them even though they are living abroad. Effect of divorce obtained by a Filipino on the capacity of the Filipino spouse re-marry. Article 26 of the Family Code has undergone a lot of interpretations, one of which is even contrary to the intention of its framers, but that is the better law. Two decisions were promulgated but are even inconsistent with one another. The provisions of Article 26 of the Family Code contemplate of a situation where if there is a mixed marriage between a foreigner and a Filipino obtained by the foreigner capacitating him/her to remarry under his/her national law, the Filipino shall likewise be capacitated to re-marry. This is a solution to the unfair situation in the old law that even if there was a mixed marriage and the foreigner divorced the Filipino, the Filipino was still married from the point of view of Philippine law, owing to the nationality theory. But the rule in Article 26 of the Family Code is restrictive as it requires that the marriage must have been mixed from the very beginning. If it was originally a Filipino marriage, but became mixed after its

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celebration and a divorce was obtained by the Filipino, then, they are still married. This is the situation in the case of Republic vs. Crasus L. Iyoy, G.R. No. 152577, September 21, 2005 Crasus Iyoy and Fely Ada Rosal-Iyoy got married in Cebu City. They had five children. Fely went to the USA in 1984 where after one year, she sent a letter to her husband requesting him to sign the divorce papers. In 1985, she got married to an American citizen. Crasus filed a complaint to declare their marriage void on the ground of psychological incapacity invoking Articles 68, 70 and 72 of the Family Code. It was also alleged that she got married during the existence of their marriage. Fely contended that she is no longer governed by Philippine law considering that she was an American citizen as early as 1988. She alleged that after securing divorce from her husband, she married an American citizen and acquired American citizenship. Hence, she argued that her marriage was valid because now being an American citizen, her status is governed by her present national law. The RTC declared the marriage of Crasus and Fely void. The OSG appealed to the CA which promulgated the following decision, thus: Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to re-marry, the Filipino spouse shall likewise have capacity to re-marry under Philippine law. The rationale behind the second paragraph of the above-quoted provision is to avoid the absurd and unjust situation of a Filipino citizen still being married to his or her alien spouse, although the latter is no longer married to the Filipino spouse because he or she has obtained a divorce abroad. In the case at bench, the defendant has undoubtedly acquired her American husbands citizenship and thus became an alien as well. This Court cannot see why the benefits of Article 26 aforequoted cannot be extended to a Filipino citizen whose spouse eventually embraces another citizenship and thus becomes herself an alien. It would be the height of unfairness if, under the circumstances, plaintiff would still be considered as married to defendant, given her total incapacity to honor her marital covenants to the former. To condemn plaintiff to remain shackled in a marriage that in truth and in fact does not exist and to remain married to a spouse who is incapacitated to discharge essential marital covenants, is verily to condemn him to a perpetual disadvantage which this Court finds

272

PERSONS AND FAMILY RELATIONS

Art. 26

abhorrent and will not countenance. Justice dictates that plaintiff be given relief by affirming the trial courts declaration of the nullity of the marriage of the parties. Not satisfied with the CAs decision, the OSG appealed to the Supreme Court which held that the judgment is not in accord with the provisions of the Family Code. It was expressly Held: According to Article 26, paragraph 2 of the Family Code of the Philippines: Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to re-marry, the Filipino spouse shall likewise have capacity to re-marry under Philippine law. As it is worded, Article 26, paragraph 2, refers to a special situation wherein one of the married couples is a foreigner who divorces his or her Filipino spouse. By its plain and literal interpretation, the said provision cannot be applied to the case of respondent Crasus and his wife Fely because at the time Fely obtained her divorce, she was still a Filipino citizen. Although the exact date was not established, Fely herself admitted in her Answer filed before the RTC that she obtained a divorce from respondent Crasus sometime after she left for the United States in 1984, after which she married her American husband in 1985. In the same Answer, she alleged that she had been an American citizen since 1988. At the time she filed for divorce, Fely was still a Filipino citizen, and pursuant to the nationality principle embodied in Article 15 of the Civil Code of the Philippines, she was still bound by Philippine laws on family rights and duties, status, conditions, and legal capacity, even when she was already living abroad. Philippine laws, then and even until now, do not allow and recognize divorce between Filipino spouses. Thus, Fely could not have validly obtained a divorce from Crasus. Comment: Admittedly, the situation calls for a review because of the unfair situation where a Filipino is in where a divorce decree is obtained, but still he is considered married by Philippine law. The Filipino is left in the dark where he has no solution at all, except to

Art. 26

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commit the crime of adultery or concubinage, while the former Filipino citizen can now re-marry. Be that as it may, the law is the law, especially so that no less than the Constitution seeks to protect the marriage as an inviolable social constitution. Remedial legislation should be made to equalize the situation of the Filipino and the former Filipino, for the Filipino to be capacitated to re-marry once the former spouse obtains a decree of divorce capacitating him/her to re-marry under his/her present national law. This has become an unfair situation which Philippine law has blindly adhered to. The law was never meant to be unfair and unjust. If the law remains this way, then, it would be promoting and sanctioning adultery and concubinage. That could not have been the intent of the framers of the Family Code. In a series of cases, the Supreme Court has expressed its pity to couples under certain situations like this. Its has always said that while the Court commiserated with respondent Crasus for being continuously shackled to what is now a hopeless and loveless marriage, this is one of those situations where neither law nor society can provide the specific answer to every individual problem. (citing Carating-Siayngco, 441 SCRA 422 [2004]; Dedel vs. CA, et al., 421 SCRA 461 [2004]; Santos vs. CA, 240 SCRA 20 [1995]). In a span of exactly two weeks, the Supreme Court rendered a judgment holding that even if the marriage becomes mixed after the celebration of the marriage, the former Filipino citizen divorcing the Filipino spouse and getting married again, the Court ruled that the Filipino can get married now. This is the better law although it is not really in accordance with the intention of the framers of the Family Code, for as has been said, the intention of the law is that, it must have been a mixed marriage from the very beginning. The Court gave emphasis to the principle that the law must be interpreted in accordance with the spirit that gives it life, rather than the letter that kills it. Case: Republic vs. Cipriano Obrecido III G.R. No. 154380, October 5, 2005 Facts: In 1981, Cipriano and Lady Miros got married and they were blessed with two children. Lady Miros and one of her children went to the USA, became an American citizen. This was later on learned

274

PERSONS AND FAMILY RELATIONS

Art. 26

by the husband. Then, she divorced him. Again, he learned it from his son. Thereafter, she got married to a certain Innocent Standby. He filed a petition with the RTC for authority to marry invoking paragraph 2 of Article 26 of the Family Code. No opposition was filed, hence, the court granted the same. The OSG representing the Republic filed a motion for reconsideration but it was denied, hence a petition for certiorari was filed with the Supreme Court contending that paragraph 2 of Article 26 of the Family Code is not applicable to Cipriano because it applies only to a valid mixed married, that is a marriage celebrated between a Filipino citizen and an alien. Cipriano on the other hand, contended and admitted that the law is not directly applicable to his case but insisted that when his naturalized wife obtained a divorce decree which capacitated by operation of law to remarry, then, he should likewise be capacitated to remarry. The novel issue which is of first impression is that, given a valid marriage between two Filipino citizens, where one party is naturalized as a foreign citizen and obtained a valid divorce decree capacitating him or her to re-marry, can the Filipino spouse likewise re-marry under Philippine law? Held: Yes. Paragraph 2 of Article 26 of the Family Code should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent. If we are to give meaning to legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26 of the Family Code.

Art. 26

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In order, however that the law may apply, the following requirements must be met, thus: 1. 2. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and A valid divorce is obtained abroad by the alien spouse capacitating him or her to re-marry.

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to re-marry. In order that the Filipino may re-marry, it is necessary that the naturalization of his wife be proven. Likewise, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. (Garcia vs. Recio, 366 SCRA 437 [2001]). Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and proved. Furthermore, it must also be shown that the divorce decree allows his former wife to re-marry as specifically required in Article 26, otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage. Comments: The language of the decision is clear. It is not sufficient that the spouse has embraced foreign citizenship and that he/she has obtained a decree of divorce. It is necessary that the Filipino spouse has to go to court and prove such facts according to the rules of evidence because foreign laws and judgments do not prove themselves in the Philippines. It must be further shown that with the divorce decree having been obtained by the foreigner, it should capacitate the latter to remarry, for, if not, the Filipino is not likewise capacitated to remarry. This law is not a perfect law, even with the judgment in Orbecido. Why? This is so because it remains to be unfair for the Filipino. The scenario is like this. The former Filipino or even the foreigner spouse obtained a decree of divorce, the effect of which is the severance of the marital relationship. Even with its severance, but the foreigner is not capacitated to remarry under his/her national law, the Filipino is not likewise capacitated to remarry. But the marriage bond has

276

PERSONS AND FAMILY RELATIONS

Arts. 27-29

already been severed but they cannot remarry. It is not the fault of the Filipino that the foreigner is not capacitated to remarry considering that it was he/she who initiated the proceedings for divorce severing the marital relationship. This is unfair to the Filipino who remains to be bond with a person who is no longer married to him/ her. This is inviting the Filipino to commit immoral acts. This law goes beyond the effects of severance of marital relationships in the Philippines pursuant to the Philippine law. Why should Philippine law care for a foreign laws effects? Orbecido did not exactly remedy the unfair situation. There is a need for a legislation to put order to the law. Our view is that, if a foreigner obtains a decree of divorce whether under his law, it capacitates him/her to remarry under his/ her law, the Filipino spouse should, under all circumstances, be capacitated to remarry. Philippine law should not be concerned with the capacity of a foreigner. It should only concern itself with the capacity of the Filipino. It is too presumptuous for Philippine law to be concerned and to govern the capacity of a foreigner. Chapter 2 Marriages Exempt from the License Requirement Article 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without the necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. (72a) Article 28. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without the necessity of a marriage license. (72a) Article 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage. (72a)

Arts. 27-34

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Article 30. The original of the affidavit required in the last preceding article, together with a legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty (30) days after the peformance of the marriage. (73a). Article 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. (74a) Article 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. (74a) Article 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices.(78a) Article 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. (76a) Article 27 of the Family Code speaks of a marriage in articulo mortis or at the point of death. If one or both contracting parties are at the point of death, there is no need for a marriage license. The reason is obvious. If there is a need for the license, then, they have yet to apply for the same, have it published for ten (10) days, etc. How can they do these things when they are, or one of them, is at the point of death? If the party at the point of death survives, the marriage would still be valid. What is important is that, at the time of the celebration of the marriage, one or both of them is at the point of death. In Article 28 of the Family Code, the law refers to a place which is so far from the office of the local civil registrar that the parties to

278

PERSONS AND FAMILY RELATIONS

Arts. 27-34

the marriage cannot appear before him due to lack of transportation. A person who has the authority to solemnize marriage can solemnize it without the necessity of a marriage license, provided that he must take steps to ascertain the ages and relationship of the parties or that no legal impediment to marry one another exists. Article 31 of the Family Code contemplates of a situation where the marriage is between passengers or crew members of a plane or vessel, where the ship captain or pilot can solemnize a marriage in articulo mortis or at the point of death. In fact, it can be solemnized while the plane is in flight or while the ship is sailing. It can be done at stopovers. It does not require any license. Article 32 of the Family Code authorizes a military commander who is a commissioned officer to perform the marriage of anyone within the area of military operation if it is under articulo mortis. The law does not limit itself to the members of the military. Even civilians are included. So that if a soldier is shot in the area of military operation and the girlfriend would like to marry him while at the point of death, the military commander can solemnize the marriage without a license and still the same would be valid. Suppose that both of them are civilians, the same would be valid because of the use of the phrase whether members of the armed forces or civilians. But let us say that X, a member of the armed forces was injured in an area of military operation, for instance, Mindanao. He was airlifted to Manila where he was confined at the Philippine General Hospital. At one point in time, he was at the point of death. Can a military commander solemnize his marriage with Y, his girlfriend without a marriage license? The answer is no because the law contemplates of a situation where the marriage must be solemnized in the zone of military operation. Such commander does not have the authority outside of it, especially so that such authority is granted to him only under extraordinary circumstances. The marriage is void for lack of a marriage license. But suppose it was the mayor of the City of Manila who solemnized the marriage of X and Y, then the marriage is valid, but this time Article 27 of the Family Code applies, not Article 32. Article 33 of the Family Code makes valid a marriage of Muslims or members of ethnic cultural minorities even without a marriage license provided that the ceremony is in accordance with their customs, rites and practices. If the marriage is between two (2) Muslims who are residents of Manila and solemnized by a judge of Manila in accordance with Christian rites and practices, there is a need

Arts. 27-34

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279

for a marriage license, otherwise it is void. This is so because the condition for the validity of such a marriage without a license is that the same must be solemnized in accordance with their customs, rites and practices. Article 34 of the Family Code dispenses with the requirement of a marriage license where the parties have been living together as husband and wife without the benefit of marriage for a period of five (5) years or even more. It further requires that there must be no legal impediment to marry one another during such coverture. Illustration: A and B, both without any legal impediment to marry one another have been living together as husband and wife for 6 years. If they get married, then there is no need for a marriage license. In lieu of the license, an affidavit stating that they have been living together for more than 5 years and without any legal impediment to marry one another is sufficient. But suppose A was only 16 years of age when they started living together and they would decide to get married, a license is required. They are not exempted from the requirement because of an impediment to marry one another. Or if B was already married to C when he started living with A, but C died on the third year of A and Bs cohabitation, still there is a need for a license because of a legal impediment to marry one another during the cohabitation. If there is no license, the marriage is void. The two preceding articles (Arts. 29 and 30) provide for the duties of the solemnizing officer after the celebration of the marriage in articulo mortis and where the spouses were married under a circumstance that they cannot appear before the local civil registrar for their application for a marriage license. As discussed elsewhere, Article 34 requires that for the marriage of a man and a woman without a marriage license to be valid, they must have lived together and exclusively with each other for a continuous and unbroken period of at least five (5) years before the marriage. It further requires that they must have had no legal impediment to marry one another. The rationale why no license is

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PERSONS AND FAMILY RELATIONS

Arts. 27-34

required in such case is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicants name for a marriage license. The publicity attending the marriage may discourage such persons from legitimizing their status. To preserve peace in the family and avoid the peeping and suspicious eye of public exposure and contain the source of gossip arising from the publication of their names, the law deemed it wise to preserve their privacy and exempt them from that requirement. The five-year common-law cohabitation should be a period of legal union had it not been for the absence of the marriage. This five-year period should be the years immediately before the day of the marriage and it should be a cohabitation characterized by exclusivity meaning no third party was involved at any time within the five years and continuity that is unbroken. Otherwise, if that continuous five-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common-law relationships and placing them on the same footing with those who lived faithfully with their spouses. (Engrace Nial vs. Norma Bayadog, supra). Legal Ratification of Cohabitation. In order that there may be legal ratification of marital cohabitation the following requisites must concur: 1. The man and woman must have been living together as husband and wife for at least five years before the marriage; The parties must have no legal impediment to marry each other; The fact of absence of legal impediment between the parties must be present at the time of marriage; The parties must execute an affidavit stating that they have lived together for at least five years; The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage. (Borja-Manzano vs. Judge Sanchez, A.M. No. MTJ00-1329, March 8, 2001, 354 SCRA1).

2. 3. 4. 5.

Arts. 27-34

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281

In this case, a judge was charged with ignorance of the law for having solemnized a marriage without a license. He did it despite knowledge that the same was void and bigamous as the marriage contract clearly stated that both contracting parties were separated. He claimed that he did not know that Manzano was legally married. What he knew was that, the two had been living together as husband and wife for seven years already without the benefit of marriage as shown in their joint affidavit. It was alleged that on the basis of the joint affidavit the judge solemnized the marriage in accordance with Article 34 of the Family Code. In holding the judge liable, the Supreme Court laid down the aforementioned rules for the application of Article 34 of the Family Code. It was explained that a subsisting previous marriage is a diriment impediment, which would make the subsequent marriage null and void. The fact that the parties to the marriage in question have been living apart from their respective spouses for a long time already is immaterial. Article 63(1) of the Family Code allows spouses who have obtained a decree of legal separation to live separately from each other, but in such a case the marriage bonds are not several. Elsewise stated, legal separation does not dissolve the marriage tie, much less authorize the parties to remarry. This holds true all the more when the separation is merely de facto. The Court went further and said that the judge cannot take refuge on the Affidavit stating that they had been cohabiting as husband and wife for seven years. Just like separation, free and voluntary cohabitation with another person for at least five years does not severe the tie of a subsisting previous marriage. Marital cohabitation for a long period of time between two individuals who are legally capacitated to marry each other is merely a ground for exemption from marriage license. It could not serve as a justification for a judge to solemnize subsequent marriage vitiated by impediment of a prior existing marriage. Comment: In this case of Manzano, the Supreme Court said that the legal impediment between the parties must be present at the time of marriage. This seems to deliver a message that it is enough that legal impediment be present at the time of the celebration of the marriage. This would sound to be anomalous and it tends to sanction immorality.

282

PERSONS AND FAMILY RELATIONS

Art. 35

In fact, Nial vs. Bayadog, requires that the cohabitation must be for a period of five years prior to the marriage, hence, the requirement of a license is not necessary. Illustration: A and B are married, but A abandoned B and his family and cohabited with C for 10 years. On January 1, 2005, B died. On January 2, 2005 A and C got married. During their cohabitation, they were committing two crimes of adultery and concubinage as the case may be. Yet, the Supreme Court now is saying that the marriage is valid even without a marriage license. It true that at the time of the celebration of the marriage, there was no more legal impediment to marry. Yet, their cohabitation was violative of our penal laws. It is believed that the law should be interpreted to mean that during the period of cohabitation with at least five years, there was no legal impediment to marry. This could make the law sound and reasonable, for the law was never intended to be absurd. This observation is founded on the law itself which states that No license shall be necessary for the marriage of a man and a woman who have live together as husband and wife for at least five years and without any legal impediment to marry each other. The law does not say that it is enough that the legal impediment be absent at the time of marriage. The language of the law uses the conjunctive and which emphasizes the fact that during their cohabitation for at least five years, there should have been no legal impediment to marry one another. Chapter 3 Void and Voidable Marriages Article 35. The following marriages shall be void from the beginning: (1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians; (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with

Art. 35

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either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) Those solemnized without a license, except those covered by the preceding chapter; (4) Those bigamous or polygamous marriages not falling under Article 41; (5) Those contracted through mistake of one contracting party as to the identity of the other; (6) 53. Article 35 enumerates the various instances of a void marriage. (1) Below 18 years One of the requirements of a valid marriage is legal capacity, that without it, the marriage is void. Age is not component of legal capacity. So that, if the parties or anyone of them is below 18 years, even with the consent of the parents, the marriage is void for lack of legal capacity. As said elsewhere, extreme youth of the parties to the marriage may not lend stability to the family. Illustration: A and B, both 17 years of age and Filipinos met in Hongkong. They got married with the consent of their parents. The marriage is void for lack of legal capacity. Even if Hongkong laws recognize their marriage as valid, the same would still be void in the Philippines because it is Philippine law that determines their legal capacity. (Article 15, New Civil Code). Furthermore, even if valid where celebrated, Articles 26(paragraph 1) and 35(1) of the Family Code provides that their marriage is void. (2) No authority to solemnize marriages Those subsequent marriages that are void under Article

For purposes of validity of a marriage, the solemnizing officer must be legally authorized to perform or celebrate marriages. Article 7 of the Family Code provides for those authorized to solemnize marriages. The Local Government Code has restored the power or authority of mayors to solemnize marriages. Without such legal authority, the marriage is void.

284

PERSONS AND FAMILY RELATIONS

Art. 35

But the law gives validity to a marriage even if the person solemnizing the marriage is not legally authorized to do so provided that one or both of the contracting parties believed in good faith that the solemnizing officer had such legal authority. Illustration: X and Y wanted to have a rush wedding. They went to the City Hall of Manila and talked to A who brought them to B who was introduced as a minister who can solemnize marriages. B solemnized the marriage of X and Y who, in good faith, believed that he could solemnize it, but in truth and in fact, he is not legally authorized as he is not a minister. This is what is known as a marriage contracted in good faith. It is valid even if there is no actual legal authority of B to solemnize the marriage. The validity of the marriage mentioned above is in line with the public policy that in case of doubt the law and the courts lean towards the validity of the matrimony. But let us say that X knew that B was not legally authorized to solemnize marriages and yet, he agreed to marry Y. Under such a situation, still the marriage is valid because Y was in good faith. While it appears to be void, such invalidity cannot be invoked by X as against Y because he cannot benefit out of his wrongdoing. (3) No marriage license

So much discussion has been made on the marriage license as a prerequisite of a valid marriage. Without it, there can be no valid marriage, except those marriages under exceptional circumstances under Articles 27, 28, 31, 32, 33, 34 of the Family Code. In fact a marriage cannot be solemnized now and the license would be produced thereafter. That is void as it was celebrated without a marriage license. Look at the case of Cosca, et al. vs. Palaypayon, Jr., et al., A.M. No. MTJ-92-721, September 30, 1994, 55 SCAD 759, where a judge was fined and reprimanded for having solemnized marriages without licenses at the time of their celebration but the marriage licenses were produced after the marriages were celebrated. The marriages cannot be valid.

Art. 36

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285

(4)

Mistake in the identity of the party

If a marriage is contracted through mistake of one of the contracting parties as to the identity of the other, the same is void. The reason is that, it is as if the party who committed that mistake in the identity of the other did not give his/her consent. This marriage used to be only voidable under the Civil Code, but it has been made void by the Family Code. (5) Subsequent marriage under Article 53

The law makes reference to a situation where there was annulment or a declaration of nullity of marriage. The law requires that these documents, together with the document delivering the presumptive legitime of the compulsory heirs of the parties, be registered in the proper civil registry or registry of property. If they failed to comply with this requirement and one or both of them contracted a subsequent marriage, the same is void. (See Arts. 52 and 53, Family Code). Even if the marriage mentioned above is celebrated abroad and valid there as such, it is void in the Philippines. (Arts. 15, New Civil Code; 26 [par. 1], Family Code). Article 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by E.O. No. 227, dated July 17, 1987). Requisites of psychological incapacity. The Family Code has not defined the concept of psychological incapacity. The only criterion given is the failure of a party to comply with the essential marital obligations of marriage. To be a ground for declaration of nullity of the marriage, psychological incapacity must: (a) (b) (c) be serious or grave; have existed upon the celebration of or after the marriage; be incurable.

Psychological incapacity is incurable even if it involves time and expenses beyond the means of the victim.

286

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The psychological incapacity must be present at the time of the marriage. In this case, it is as if the person suffering from psychological incapacity did not give consent at all. The same need not be apparent at the time of the marriage. It is sufficient if it becomes manifest after the marriage. Psychological incapacity refers to no less than mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage. In the case of Tsoi vs. CA, et al., G.R. No. 119190, January 16, 1997, 78 SCAD 57, however, the Supreme Court said that failure of a spouse to provide sex to the other party is an indicium of psychological incapacity. What constitutes psychological incapacity? An issue of first impression was raised in one case because of the ruling of the Court of Appeals that the rules on psychological incapacity do not apply if one of the spouses is a foreigner. The ruling was held to be erroneous for the reason that the rules apply regardless of the nationality of one of the spouses. If the rule were otherwise, then, it would be very easy to defeat the purpose of the law. It would result in a mockery of our marriage laws. Finally, it would be sanctioning absurdity and unfairness if we distinguish the application of the rules by making it inapplicable if one of the parties is a foreigner. In Republic vs. Lolita Quintero-Hamano, G.R. No. 149498, May 20, 2004, Corona, J., a woman filed a complaint seeking to nullify her marriage on the ground of psychological incapacity. She alleged that her husband, failed to meet his duty to live with, care for and support his family. He abandoned them a month after his marriage. She sent him several letters but he never replied. He made a trip to the Philippines but did not care at all to see his family. In dismissing the complaint, the Court ruled that the totality of evidence fell short of proving that the man was psychologically incapacitated to assume his marital responsibilities. The mans act of abandonment was doubtlessly irresponsible but it was never alleged nor proven to be due to some kind of psychological illness. After she testified on how he abandoned them, no other evidence was presented showing that his behavior was caused by a psychological disorder. Although, as a rule, there was no need for an actual medical examination, it would have greatly helped respondents case had she

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presented evidence that medically or clinically identified his illness. They could have been done through an expert witness. This, respondent did not do. Abandonment is also a ground for legal separation. (Art. 55[10], Family Code). There was no showing that the case at bar was not just an instance of abandonment in the context of legal separation. Psychological defect cannot be presumed from the mere fact that the husband abandoned his family immediately after the celebration of the marriage. As it has been ruled in Molina, it is not enough to prove that a spouse failed to meet his responsibility and duty as a married person; it is essential that it must be shown to be incapable of doing so due to some psychological, not physical, illness. There was no proof of natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates a person from accepting and complying with the obligations essential to marriage. Rules on psychological incapacity apply even if the spouse is a foreigner. According to the appellate court, the requirements in Molina and Santos do not apply here because the present case involves a mixed marriage, the husband being a Japanese national. In proving psychological incapacity, there is no distinction between an alien spouse and a Filipino spouse. Courts should not be lenient in the application of the rules merely because the spouse alleged to be psychologically incapacitated happens to be a foreign national. The medical and clinical rules to determine psychological incapacity were formulated on the basis of studies of human behavior in general. Hence, the norms used for determining psychological incapacity should apply to any person regardless of nationality. In Pesca vs. Pesca, 356 SCRA 588 (2001), the Court declared that marriage is an inviolable social institution that the State cherishes and protects. The Supreme Court said that while it commiserated with respondent, terminating her marriage to her husband may not necessarily be the fitting denouement. The Supreme Court furthermore said that it is mindful of the policy of the 1987 Constitution to protect and strengthen the family as the basic autonomous social institution and marriage as the foundation of the family. (Art. III, Sec. 12; Art. XV, Sections 1 and 2 of the 1987 Constitution). Thus, any doubt should be resolved in favor

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of the validity of the marriage. (Rep. vs. Dagdag, 351 SCRA 425; Rep. vs. Hernandez, 320 SCRA 76). How psychological incapacity may be established. Psychological incapacity, as a ground for declaring the nullity of a marriage, may be established by the totality of evidence presented. There is no requirement, however, that the respondent should be examined by a physician or a psychologist as a condition sine qua non for such declaration (Marcos vs. Marcos, G.R. No. 136490, October 19, 2000; Choa vs. Choa, G.R. No. 143376, November 26, 2002). It is sufficient that the totality of the evidence, even without physicians examination be present. It is enough that the three basic requirements mandated by the Court in Santos vs. Court of Appeals (240 SCRA 20) that it be characterized by (a) gravity (b) juridical antecedence (c) incurability be present. The foregoing guidelines do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause may be medically or clinically identified. What is important is the presence of evidence that can adequately establish the partys psychological condition. For indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to. (Republic vs. CA & Molina, 268 SCRA 198; Marcos vs. Marcos, supra.; Choa vs. Choa, supra.). Psychological incapacity as ground for declaration of nullity of marriage may not be equated with divorce or legal separation. Article 36 of the Family Code is not to be confused with a divorce law that cuts the marital bond at the time the causes therefore manifest themselves. It refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. These marital obligations are those provided under Article 68 to 71, 220, 221 and 225 of the Family Code. Neither is Article 36 to be equated with legal separation, in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, moral corruption, civil

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interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like. (Marcos vs. Marcos, supra). In an action for declaration of nullity, medical examination is not a condition sine qua non to a finding of psychological incapacity of the party. The totality of evidence must be enough to establish the incapacity. Case: Choa vs. Choa G.R. No. 143376, November 26, 2002 Facts: Leni Choa and Alfonso Choa were married on March 15, 1981. In 1993, Alfonso filed an action for declaration of nullity of their marriage on the ground of Lenis alleged psychological incapacity. Alfonso claimed that the filing by Leni of a series of charges against him is proof of her psychological incapacity. These charges include complaints for perjury, false testimony, concubinage and deportation. Alfonso claimed that the filing and prosecution of these cases clearly showed that his wife wanted not only to put him behind bars, but also to banish him from the country. He contended that this is very abnormal for a wife who, instead of protecting the name and integrity of her husband as the father of her children, had acted to the contrary. He also complained about her lack of attention to their children, immaturity and lack of an intention to procreative sexuality because she used to be on the pill even before they got married. Alfonso presented at the trial an expert witness who testified to prove the psychological incapacity of Leni. When Alfonso rested his case, Leni filed a demurrer to evidence alleging that he presented nothing to substantiate the alleged psychological incapacity. The trial court denied the demurrer. Alfonso went up to the CA which upheld the trial court. Hence, this proceeding before the Supreme Court. Issue: Did Alfonso make out a case of psychological incapacity? Held: No, he did not. The evidence presented by Alfonso is grossly insufficient to support a finding of psychological incapacity. It is

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the height of absurdity and inequity to condemn her as psychologically incapacitated to fulfill her marital obligations simply because she filed cases against him. Even if taken as true, the alleged lack of attention to their children, immaturity and lack of an intention of procreative sexuality, singly or collectively, does not constitute psychological incapacity. The evidence adduced by respondent merely showed that he and his wife could not get along with each other. Mere showing of irreconcilable differences and conflicting personalities in no wise constitutes psychological incapacity. The alleged lack of intention of procreative sexuality is belied by the fact that 2 children were born during the marriage. Most telling is the insufficiency, if not incompetence, of the supposed expert witness who utterly failed to identify the root cause of the alleged psychological incapacity. He failed to show that the incapacity, if true, was medically or clinically permanent or incurable. Neither did he testify that it was grave enough to bring about the disability of the party to assume the essential obligations of marriage. Furthermore, the assessment of Leni by the expert witness was based merely on description communicated to him by Alfonso. Since the expert witness had no personal knowledge of the facts he testified to, his testimony may be dismissed as unscientific and unreliable. Sexual infidelity and abandonment do not constitute psychological incapacity. Case: David B. Dedel vs. CA, et al. G.R. No. 151867, January 29, 2004 Facts: A man complained about the sexual infidelity of the wife. Aside from that, he said that during their marriage, she turned out to be an irresponsible and immature wife and mother. She had extramarital affairs with several men; a dentist in the Armed Forces of the Philippines; a Lieutenant in the Presidential Security Command and later a Jordanian national. She was once confined in the Medical City for treatment by Dr. Lourdes Lapuz, a clinical psychiatrist. He alleged that despite the treatment, she did not stop her illicit relationship with the Jorda-

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nian national named Mustafa Ibrahim, whom she married and with whom she had two children. However, when Mustafa Ibrahim left the country, she returned to him bringing along her two children by Ibrahim. He accepted her back and even considered the two illegitimate children as his own. Thereafter, on December 9, 1995, she abandoned him to join Ibrahim in Jordan with their two children. Since then, Sharon, would only return to the country on special occasions. Finally, giving up all hope of a reconciliation with her, he filed on April 1, 1997 a petition seeking the declaration of nullity of his marriage on the ground of psychological incapacity, as defined in Article 36 of the Family Code, before the Regional Trial Court of Makati City , Branch 149. Summons was effected by publication in the Pilipino Star Ngayon, a newspaper of general circulation in the country considering that she did not reside and could not be found in the Philippines. He presented Dr. Natividad A. Dayan, who testified that she conducted a psychological evaluation of petitioner and found him to be conscientious, hardworking, diligent, a perfectionist who wants all tasks and projects completed up to the final detail and who exerts his best in whatever he does. On the other hand, Dr. Dayan declared his wife as suffering from Anti-Social Personality Disorder exhibited by her blatant display of infidelity; that she committed several indiscretions and had no capacity for remorse, even bringing with her the two children of Mustafa Ibrahim to live with petitioner. Such immaturity and irresponsibility in handling the marriage like her repeated acts of infidelity and abandonment of her family are indications of Anti-Social Personality Disorder amounting to psychological incapacity to perform the essential obligations of marriage. After trial, judgment was rendered declaring the marriage void on the ground of psychological incapacity on the part of the wife. The Solicitor General appealed to the CA which reversed the judgment holding that the psychological incapacity of the wife was not attended by gravity, juridical antecedence and permanence or incurability, and that the totality of the evidence submitted fell short of proof of psychological incapacity. The basic question raised in the Supreme Court on appeal was whether the totality of the evidence presented was enough to sustain the psychological incapacity of the wife. Or, otherwise stated, did the aberrant sexual behavior of the wife fall within the term psychological incapacity.

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Held: No. In the earlier case of Santos vs. CA, 310 Phil. 21 (1995), it was said that: x x x psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed in Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be legitimate. The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. These provisions, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity. Until further statutory and jurisprudential parameters are established, every circumstance that may have some bearing on the degree, extent and other conditions of that incapacity must, in every case, be carefully exa-

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mined and evaluated so that no precipitate and indiscriminate nullity is peremptorily decreed. The well-considered opinion of psychiatrists, psychologists and persons with expertise in psychological disciplines might be helpful or even desirable. The Supreme Court went further and said that the difficulty in resolving the problem lies in the fact that a personality disorder is a very complex and elusive phenomenon which defies easy analysis and definition. In this case, her sexual infidelity can hardly qualify as being mentally or physically ill to such an extent that she could not have known the obligations she was assuming, or knowing them, could not have given a valid assumption thereof. (Republic vs. Dagdag, 351 SCRA 425 [2001]). It must appear that her promiscuity did not exist prior to or at the inception of the marriage. What was in fact, disclosed by the records was a blissful marital union at its celebration, later affirmed in church rites, and which produced four children. Her sexual infidelity or perversion and abandonment do not by themselves constitute psychological incapacity within the contemplation of the Family Code. Neither could her emotional immaturity and irresponsibility be equated with psychological incapacity. (Desca vs. Desca, 356 SCRA 425 [2001]). It must be shown that these acts are manifestations of a disordered personality which make her completely unable to discharge the essential obligations of the marital state, not merely due to her youth, immaturity (Hernandez vs. CA) or sexual promiscuity. At best, the circumstances relied upon by petitioner are grounds for legal separation under Article 55 of the Family Code. However, it was pointed out in Marcos vs. Marcos, 343 SCRA 755 (2000), that Article 36 of the Family Code is not to be equated with legal separation in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like. In short, the evidence presented by petitioner refers only to grounds for legal separation, not for declaring a marriage void. It was further said that the trial court has no jurisdiction to dissolve their church marriage. The authority to do so is exclusively lodged with the Ecclesiastical Court of the Roman Catholic Church. Finally, it was said that the Court cannot deny the grief, frustration and even desperation of petitioner in his present situation. Regrettably, there are circumstances, like in this case, where nei-

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ther law or nor society can provide the specific answers to every individual problem. (Santos vs. CA, supra.). While it sympathized with his marital predicament, it said, its first and foremost duty is to apply the law no matter how harsh it may be. The rule has to so because no less than the Constitution seeks to uphold the validity of the marriage as it is the foundation of the family. Mere abandonment of spouse for four (4) years does not amount to psychological incapacity. Facts: Leouel Santos married Julia on September 20, 1986. After the marriage, they lived with the latters parents, then a baby boy was born. There were frequent interferences by Julias parents into their affair, they often quarreled as to when they shall start living independently. On May 18, 1988, Julia left for the USA to work as a nurse despite Leouels objections. A few months after her departure, she called him and promised to come home to the Philippines after her contract, but she never did. When he went to the USA on training, he tried to locate her, but to no avail; so, when he came back to the Philippines, he filed an action for declaration of nullity of the marriage on the ground of psychological incapacity. Julia, through counsel, filed an answer and denied the claim. The case was dismissed by the Regional Trial Court which was affirmed by the Court of Appeals. Before the Supreme Court, he asserted that there is no love and affection from her because of her failure to communicate with him for three years. Hence, she is suffering from psychological incapacity. Held: The factual settings in the case in no measure come close to the standards required to declare a nullity the marriage of spouses. This is so because psychological incapacity must be characterized by: (a) gravity; (b) juridical antecedence; (c) incurability. The incapacity must be grave or serious such that the party would not be capable of carrying out the ordinary duties required in marriage; it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and it must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved.

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It should be obvious, looking at all the foregoing disqualifications, including, and most importantly, the deliberation of the Family Code Revision Committee itself, that the use of the phrase psychological incapacity under Article 36 of the Family Code has not been meant to comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity and like circumstances (cited in Fr. Artemio Balumas Void and Voidable Marriages in the Family Code and their Parallels in Canon Law, quoting from the Diagnostic Statistical Manual of Mental Disorder by the American Psychiatric Association; Edward Hudsons Handbook II for Marriage Nullity Cases). Article 36 of the Family Code cannot be taken and construed independently of, but must stand in conjunction with existing precepts in our law on marriage. Thus correlated, psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity and inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be legitimate. The other form of psychoses, if existing at the time of the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcoholism, homosexuality or lesbianism should occur during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. These provisions of the Code, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity.

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Until further statutory and jurisprudential parameters are established, every circumstance that may have some bearing on the degree, extent, and other conditions of that incapacity must, in every case, be carefully examined and evaluated so that no precipitate and indiscriminate nullity is preemptorily decreed. The well-considered opinions of psychiatrists, psychologists, and persons with expertise in psychological disciplines might be helpful or even desirable. Marriage is not just an adventure but a lifetime commitment. We should continue to be reminded that innate in our society, then enshrined in our Civil Code, and even now still indelible in Article 1 of the Family Code, is that Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits of this Code. Our Constitution is no less emphatic: Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. (Article XV, 1987 Constitution). The above provisions express so well and so distinctly the basic nucleus of our laws on marriage and the family, and they are no doubt the tenets we still hold on to. (Santos vs. CA, et al., G.R. No. 112019, January 4, 1995, 58 SCAD 17). When physical incapacities constitute psychological incapacity. The Supreme Court in Santos vs. CA said that drug addiction, habitual alcoholism, lesbianism or homosexuality may be indicia, depending upon the degree and severity, of psychological incapacity. These are physical incapacities that may constitute psychologi-

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cal incapacity depending upon their degree or gravity. If drug addiction is so serious and grave that it would cause failure on the part of the spouse to comply with his/her essential duties to the marriage bond, then, the same can be a ground to declare the marriage void on the ground of psychological incapacity. But it must be observed that the degree and gravity of drug addiction is a matter of evidence. There must be proof; otherwise, the courts would still uphold the validity of the marriage by reason of public policy. The Supreme Court said that until further judicial and legal parameters are established, every circumstance that may have any bearing on the degree, extent and other conditions of incapacity must be carefully examined and evaluated to prevent indiscriminate declaration of nullity of marriage due to psychological incapacity. It means simply that psychological incapacity may be declared depending upon the circumstance of each case. There can be no absolute standards in gauging whether one is suffering from psychological incapacity or not. That is exactly the reason why the framers of the Family Code did not define it so as to give an elbow room for judicial interpretation of the subject. Had they made a limited or definite concept, then, the courts would be bound by the same and would limit their application of the law to what has been defined by the law. Ten months without sex is enough evidence of serious personality disorders sufficient to declare a marriage void. In a case, Tsoi vs. CA, et al., G.R. No. 119190, January 16, 1997, 78 SCAD 57, the Supreme Court nullified a marriage on the ground that a union without sex is useless. Love is useless unless it is shared with another. It is the sexual intimacy which brings the spouses wholeness and oneness. The plaintiff in this case got married to her husband on May 22, 1988 and spent 10 months without sex with her husband. Her first four nights with her husband, a foreigner, was spent sleeping. They stayed for a few days in Baguio, but nothing likewise happened, as her husband took a long walk and slept on a rocking chair for four days in Baguio. They slept on the same bed and in the same room from May 22, 1988 to March 15, 1989 without sex, thus, she could still claim to be a virgin. On January 19, 1989, they decided to have themselves examined and the results showed that the woman was healthy, normal and still a virgin. The woman said that the man was impotent and was a closet homosexual as she once saw him using an eyebrow pencil and applying the cleansing

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cream of his mother. She also said that he married her to get a permanent residency status and put up a front that he was a man. The man testified that he loved the woman and contended that he had no physical or mental disability. He said that the reason why the plaintiff filed the case was that she was afraid that she would be forced to return the jewelry given her by his mother and was in fact afraid of having sex with him. He admitted, however, that he had not had sex with her. The doctor examined his penis and the doctor asked him to masturbate. From the original size of two inches, it lengthened by one inch and one centimeter, but the doctor said that despite this, he can still have sexual intercourse. The Supreme Court said that the 10 months cohabitation without sex was enough proof that he was unwilling despite his claims that he loved his wife, to perform the act. This is indicative of a hopeless situation and of a serious personality disorder. Expounding further on the issue, the Supreme Court said while it is true that the trial court did not make any findings of facts as to who between the two parties refused to have sexual contact with the other, it said that the fact was that, there was never any coitus between them. At any rate, since the action to declare the marriage void may be filed by either party, i.e., even the psychologically incapacitated, the question of who refuses to have sex with the other becomes immaterial. The Supreme Court further observed that defendant wanted to impress upon the Court that he tried to have sex with his wife or that the reason for him to have refused to have sex with his wife was not psychological but physical disorder. The Supreme Court said: We do not agree. Assuming it to be so, petitioner could have discussed with private respondent or asked her whats ailing her, and why she balks and avoids him everytime he wanted to have sexual intercourse with her. He never did. At least, there is nothing in the record to show that he had tried to find out or discover what the problem with his wife could be. What he presented in evidence is his doctors Medical Report that there is no evidence of his impotency and he is capable of erection. Since it is petitioners claim that the reason is not psychological but perhaps a physical disorder on the part of the private respondent, it became incumbent upon him to prove such a claim.

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If a spouse, although physically capable but simply refuses to perform his or her essential marriage obligations, and refusal is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn refusal. Senseless and protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of the spouse to have sexual intercourse with his or her spouse is considered a sign of psychological incapacity. (Psychological incapacity, G.T. Veloso, p. 20). Evidently, one of the essential marital obligations under the Family Code is: To procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marrriage. Constant non-fulfillment of this obligation will finally destroy the integrity or wholeness of the marriage. In the case at bar, the senseless and protracted refusal of one of the parties to fulfill the above marital obligation is equivalent to psychological incapacity. As aptly stated by the respondent court: An examination of the evidence convinces us that the husbands plea that the wife did not want carnal intercourse with him does not inspire belief. Since he is not physically impotent, but he refrained from sexual intercourse during the entire time (from May 22, 1988 to March 15, 1989) that he occupied the same bed with his wife, purely out of sympathy for her feelings, he deserves to be doubted for not having asserted his rights even though she balked. (Tompkins vs. Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330). Besides, if it were true that it is the wife who was suffering from incapacity, the fact that the defendant did not go to court and seek the declaration of nullity weakens his claim. This case was instituted by the wife whose normal expectations of her marriage were frustrated by her husbands inadequacy. Considering the innate modesty of the Filipino woman, it is hard to believe that she would fabricate testimony against her husband if it were not necessary to put her life in order and put to rest her marital status. We are not impressed by defendants claim that what the evidence proved is the unwillingness or lack of intention to perform the sexual act, which is not psychological incapacity, and which can be achieved through proper motivation. After almost ten months of cohabitation, the admission that the husband is unwilling or is reluctant to perform the sexual act with his wife whom he professes to

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love very dearly, and who has not posed any insurmountable resistance to his alleged approaches, is indicative of a hopeless situation, and of a serious personality disorder that constitutes psychological incapacity to discharge the basic marital covenants within the contemplation of the Family Code. While the law provides that the husband and wife must live together, observe mutual love and fidelity, x x x (Article 68, Family Code), it is actually the spontaneous, mutual affection between husband and wife and not any legal mandate or court order. (Cuaderno vs. Cuaderno, 120 Phil. 1298). Love is useless unless it is shared with another. Indeed, no man is an island, the cruelest act of a partner in marriage is to say I could not have cared less. This is so because an ungiven self is an unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual intimacy which brings spouses wholeness and oneness. Sexual intimacy is a gift and a participation in the mystery of creation. It is a function which enlivens the hope of procreation and ensures the continuation of family relations. It appears that there is absence of empathy between petitioner and private respondent. That is a shared feeling which between the husband and wife must be experienced not only by having spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way process. An expressive interest in each others feelings at a time it is needed by the other can go a long way in deepening the marital relationship. Marriage is definitely not for children, but for two consenting adults who views the relationship with love amor gignit amorem, respect, sacrifice and a continuing commitment to compromise, conscious of its value as a sublime social institution. This Court, finding the gravity of the failed relationship in which the parties found themselves trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but sustain the studied judgment of respondent appellate court. One question has been asked: If both parties are suffering from psychological incapacity, and one of them would file a suit to declare the marriage void, can the other party invoke the principle of in pari delicto to defeat the action? It is believed that the principle of in pari delicto does not apply in a suit for declaration of a marriage void on the ground of psychological incapacity. For, while the law says a marriage contracted by any party who, at the time of the celebration was psychologically incapacitated there is nothing to

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prevent the court from declaring the marriage void if both of them are suffering from psychological incapacity. If the psychological incapacity of only one of the parties is sufficient to warrant a declaration of nullity of the marriage, how much more if both of them are suffering from psychological incapacity? In the first, only one is incapacitated to comply with the essential duties to the marriage bond. In the second, none of them can comply with their duties to the bond, so, necessarily and with more reason, the marriage must be put to an end. Effect of partial psychological incapacity. But let us say that one of the parties was declared as one suffering from psychological incapacity and thus, the marriage was declared void, can he/she get married again? The answer is in the affirmative; for there can be partial psychological incapacity in relation to a partner, but he/she may not be in relation to another. Defense of in pari delicto is inapplicable in psychological incapacity cases. In Ramon Velasco vs. Norma Villanueva Velasco, CA-G.R. No. 36075, February 16, 1995, penned by Justice Jesus M. Elbinias, it was said that the act of the wife of living separately from the husband, maintaining sexual relations with another man, boasting to her husband how physically big and macho her paramour is shows a clear lack of love, respect and fidelity to her husband. The Court of Appeals reversed the Regional Trial Courts decision denying the action for declaration of nullity of the marriage on the ground of psychological incapacity. Case: Ramon Velasco vs. Norma V. Velasco CA-G.R. No. 36075, February 16, 1995 Facts: The unrebutted testimony of the plaintiff on the sexual attitude of the defendant was that the latter even boasted that her paramour was a better partner in bed; described him as macho. He also presented letters of the defendant to her paramour telling him

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how she missed him. In fact, the defendant even confirmed the truth about the letters. The lower court held that the defendant was still capable of complying with her duties to the marriage bond, hence, an appeal was made with the Court of Appeals. The Court of Appeals made the observation that from the judicial admission of the parties, they were psychologically incapacitated but it was worse for the defendant. It was said that: The adulterous relationship of the defendant with said Donald Tan was adequately substantiated by copies of the letters written by defendant to said paramour. The originals thereof were presented and testified thereon by the plaintiff on direct examination. Counsel for the defendant did not cross-examine the plaintiff on the authenticity of those letters nor on the fact that those letters were obtained from Donald Tan, the addressee thereof. Neither did the defendant, during her direct examination, by way of rebuttal, deny that those letters were written by her. Thus, the authenticity of those letters were deemed admitted, with or without Donald Tan testifying on them. Now, in the lecture delivered by former Justice Ricardo Puno on the Family Code at the UP Law Center on November 19, 1988, he cited as one of the examples of psychological incapacity excess sex hunger, which is satyriasis in men and nymphomania in women. (Cited in Rufus B. Rodriguez, The Family Code of the Philippines Annotated, p. 69, 1992 ed.). In this case, the testimonies on record, the letters defendant wrote to her paramour, Donald Tan, and her boast to the plaintiff that Donald Tan had a bigger physique (and all that it implies), a macho and better in bed, show that even if she does not have such excessive hunger as to amount to nymphomania, at least she appears to be close to having it. It should be noted that the spouses here have been childless for more than 10 years. They have subjected themselves to medical examinations to know the cause of their childlessness. The plaintiff-husband was found to be sterile due to a low sperm count. The defendant-wife herself has admitted to also being barren. Thus, in his strong desire to have a child, even by adoption, the husband broached the idea to his wife, who acceded, and they agreed to adopt the child born out of wedlock of 19 year-old Yvonne Tan.

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The adoption of Yvonnes child would have filled the spouses filial need, and, if it had, one essential obligation of their marriage would have been complied with. But this did not come to pass. The wife became jealous of Yvonne because her husband had been frequenting Yvonnes dwelling supposedly to visit the child, but often spending his nights with her. Thus, the wife started spying to discover their places of assignations. She eventually found her husband and Yvonne staying in a beachhouse. Whereupon, she confronted the couple scandalously and called the police to arrest him, who was immediately taken to the police station where the incident was blotted to his embarrassment. She then filed with the Department of Justice an administrative case against him for immorality, only to withdraw the case later when he, to prove that she herself was immoral, submitted original copies she had written to Donald Tan. One of the essential moral obligations of the spouses to each other, aside from sexual union, is to procreate children at least one and found a family. To our mind, when this couple decided to marry each other, they expected to have children of their own. Their psychological make-up, at least that of the husband, at the time of the celebration of their marriage was one of confident anticipation that they were going to have children, as most couples do. This mental frame of the husband was confirmed by subsequent events, such as his intense desire to have a child to the extent of having himself medically examined for a possible cure and the eventual adoption of Yvonnes child. From those circumstances, we can infer from the basis of the preponderant evidence on record that, at the time of his marriage, he was not psychologically prepared to accept his incapacity, or that of his wife, to bring children to the world, and psychologically incapable of facing the reality of a childless marriage, although this incapacity only manifested when, obsessed with the desire of having a child, he had himself and his wife medically examined. In fact, the wife has admitted that their incapacity to procreate children existed at the time of solemnization of their marriage and has persisted for 10 years up to the time the controversy arose. It is on the ground of psychological incapacity, therefore, that the husband instituted the action a quo seeking to have his marriage to the defendant be declared void.

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That he can file an action for this purpose on such ground and only after years following the celebration of their marriage, as he did, is beyond question. The provisions of Article 36 of the Family Code are clear on the point: A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by E.O. No. 227, July 17, 1987). Moreover, from the actuations of the wife living separately in the Imbo apartment away from the conjugal home, maintaining sexual liaison with Donald Tan, revealing in her letters to this paramour how she missed him (implying the need to fill her sexual urges), boasting to her husband how physically big (with the usual sexual insinuation) and macho this paramour was it is clear that she lacks the love, respect and fidelity she owes him, so that, although she may not be psychologically incapacitated in the legal sense contemplated in said Article 36 of the Family Code to be entitled to ask for declaration of the nullity of marriage, her actuations are clearly demonstrative of utter insensibility or inability to give meaning and significance to the marriage. All those, added to the psychological incapacity of her husband and even if such incapacity is to be discounted are, to our mind, compelling reasons to severe their marriage and to let them go their own way, as they in fact have already done, the husband keeping his adopted child and Yvonne, and the wife marrying someone, physically big and macho. To preserve their marriage under those circumstances would be to force the spouses to continue committing immorality during their entire lives while remaining married to each other. This certainly is not the intendment of the law. The action a quo was properly instituted. There is no question that, as the party who is psychologically incapacitated, he or his wife may file an action for the declaration of the absolute nullity of the marriage on that ground. Note that the decision of the Court of Appeals is justified by the rule enunciated in Article 68 of the Family Code that the husband and the wife are obliged to live together, love one another, support, help and observe mutual respect and fidelity. The situation in the

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aforementioned case exactly falls under the law for the woman did not show love and respect for the husband anymore by boasting that her paramour was a bigger and better partner in bed. That is adding insult to injury. What is marriage if there is no love, no respect? Under the circumstances, it is better to put an end to the marriage, rather than preserving it, for there would be no peace in the family. There is no solidarity and sanctity of the family to speak of which the Constitution seeks to preserve. The Court of Appeals recognized the fact that both spouses were suffering from psychological incapacity, but it said it was worse for the wife. In short, even the defense of in pari delicto would not defeat an action for declaration of nullity of marriage due to psychological incapacity. In ordinary contracts, if there is pari delicto, the court would leave the parties where they are. They are not entitled to the relief they are asking for. But in actions for declaration of nullity of marriage on the ground of psychological incapacity, such defense is unavailing. It must be observed that the Supreme Court, in Antonio A.S. Valdes vs. RTC, Quezon City, silently agreed with the Regional Trial Court on the pari delicto rule. In this case, the lower court voided the marriage even as it recognized their pari delicto. At any rate, it was not the issue as the main case became final and executory in the lower court. But, an examination of Article 36 of the Family Code shows that if any party to the marriage is not capacitated to comply with his or her duties to the marriage bond, then, the marriage can be declared void on the ground of psychological incapacity. It is believed that if one of the parties is suffering from psychological incapacity the marriage can be declared void, then, with more reason if both of the parties are suffering from psychological incapacity. The reason is obvious. What would happen to the family if both parties cannot comply with their essential duties to the marriage bond, like loving, supporting, respecting, helping one another and living together? Then, there would be chaos in the family. Since there is no pari delicto in psychological incapacity cases, anyone of the parties or both of them can commence the action to declare the marriage void. Even the one suffering from psychological incapacity can commence the action. The reason is that, the law does not make any distinction. When the law does not distinguish, we should not distinguish. Irreconcilable conflicts do not constitute psychological incapacity. Another development on psychological incapacity is the case of Republic vs. CA, et al., G.R. No. 108763, February 13, 1997, 79

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SCAD 462, where an action for declaration of nullity of marriage was brought due to irreconcilable differences and conflicting personalities of the parties. It was said that in no wise do these things constitute psychological incapacity. They were more of difficulties, if not outright refusal or neglect in the performance of some marital obligations. It was said that it is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so, due to some psychological (not physical) illness. The only evidence adduced showed that she and her husband could not get along with each other. There had been no showing of the gravity of the problem; neither its juridical antecedence nor its incurability. It was shown that after a son was born, the man showed signs of immaturity and irresponsibility as a husband and a father since he preferred to spend more time with his peer and friends on whom he squandered his money; that he depended upon his parents for aid and assistance and was never honest with his wife in regard to their finances, resulting in frequent quarrels between them; when he was relieved from his job, she became the sole breadwinner of the family; that they had intense quarrels, as a result of which their relationship was estranged. She resigned later from her job and went to reside with her parents in Baguio City and since then, he had abandoned them. All these things, she said, showed that her husband was suffering from psychological incapacity, hence, incapable of complying with essential marital obligations and was a highly immature and habitually quarrelsome individual who thought of himself as a king to be served. The Supreme Court said that the marriage cannot be nullified on the ground of psychological incapacity. In doing so, the Court laid down some rules or guidelines in the interpretation of Article 36 of the Family Code, thus The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it as the foundation of the nation. It decrees marriage as legally inviolable, thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be protected by the State.

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The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability, and solidarity. The root cause of the psychological incapacity must be: (a) medically or clinically identified; (b) alleged in the complaint; (c) sufficiently proven by experts; and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological not physical, although its manifestations and/ or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless, such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. The incapacity must be proven to be existing at the time of the celebration of the marriage. The evidence must show that the illness was existing when the parties exchanged their I dos. The manifestation of the illness need not be perceivable at such time, but the illness must have attached at such moment, or prior thereto. Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, mild characteriological peculiarities, mood changes, occasional emotional outbursts cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral ele-

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ment in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church of the Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which provides: The following are incapable of contracting marriage: Those who are unable to assume the essential obligations of marriage due to causes of psychological nature. Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such appellate tribunal. Ideally subject to our law on evidence what is decreed as canonically invalid should also be decreed civilly void. This is one instance where, in view of the evident source and purpose of the Family Code provision, contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the Church while remaining independent, separate and apart from each other shall walk together in synodal cadence towards the same goal of protecting and cherishing marriage and the family as the inviolable base of the nation. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution

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of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. Jurisprudential evolution on Psychological Incapacity. The Molina guidelines on psychological incapacity. In Republic vs. Molina, the Supreme Court came up with the following guidelines in the interpretation and application of Article 36 of the Family Code for the guidance of the bench and the bar: (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological not physical, although its manifestation and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis (Salita vs. Magtolis, 233 SCRA 100, June 13, 1994), nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. The incapacity must be proven to be existing at the time of the celebration of the marriage. The evidence must show that the illness was existing when the parties exchanged their I dos. the manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto.

(2)

(3)

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(4)

Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illness of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his or her own children as an essential obligation of marriage. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, mild characteriological peculiarities, mood changes, occasional emotional outbursts cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligations must also be stated in the petition, proven by evidence and included in the text of the decision. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church of the Philippines, while not controlling or decisive, should be given great respect by our courts. x x x The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition.

(5)

(6)

(7)

(8)

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The Solicitor General, along with the prosecuting attorney, shall submit to the Court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. (Republic vs. CA, et al., 268 SCRA 198 [1992]). The guidelines incorporate the three basic requirements earlier mandated by the Court in Santos: psychological incapacity must be characterized by (a) gravity (b) juridical antecedence and (c) incurability. The foregoing guidelines do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause may be medically or clinically identified. What is important is the presence of evidence that can adequately establish the partys psychological condition. For indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to. (Marcos vs. Marcos, 343 SCRA 755 [2000]). Observations: No exact parameters on psychological incapacity. If one looks very deeply into the decisions of the Supreme Court on psychological incapacity, a conclusion can be arrived at and that is, there is no uniform decision on the concept. They even tend to conflict with one another. The reason is obvious. The framers of the law did not intend to put a definition of the term in order to give an elbow room for the courts to determine under what circumstances a person may be suffering from psychological incapacity. Psychological incapacity has no exact parameters in law. Even the framers of the Family Code admit it. Cases on psychological incapacity have to be decided on a case-to-case basis. So far, since the effectivity of the Family Code which provides for psychological incapacity as a ground to nullify a marriage, only two cases have been decided nullifying a marriage on such ground (Chi Ming Tsoi v. CA, 334 Phil. 294 [1997]), definitively declared that a spouse was psychologically incapacitated under Article 36 of the Family Code due to his persistent refusal and failure to provide sex to his wife (Republic v. CA, et al., 335 Phil. 664 [1997]), or otherwise known as the Molina Doctrine has given certain parameters in psychological incapacity cases. The Supreme Court in Leonilo Antonio v. Marie

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Ivonne F. Reyes, G.R. No. 155800, March 10, 2006 (Tinga, J.) had the opportunity to trace the history and legal guidelines in understanding Article 36. It was said: Chi Ming Tsoi v. Court of Appeals, wherein the Court definitively concluded that a spouse was psychologically incapacitated under Article 36. This state of jurisprudential affairs may have led to the misperception that the remedy afforded by Article 36 of the Family Code is hollow, insofar as the Supreme Court is concerned. Yet what Molina and the succeeding cases did ordain was a set of guidelines which, while undoubtedly onerous on the petitioner seeking the declaration of nullity, still leave room for a decree of nullity under the proper circumstances. Molina did not foreclose the grant of a decree of nullity under Article 36, even as it raised the bar for its allowance. Legal Guides to Understanding Article 36 Article 36 of the Family Code states that [a] marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. The concept of psychological incapacity as a ground for nullity of marriage is novel in our body of laws, although mental incapacity has long been recognized as a ground for the dissolution of a marriage. The Spanish Civil Code of 1889 prohibited from contracting marriage persons who are not in the full enjoyment of their reason at the time of contracting marriage. Marriages with such persons were ordained as void, (Spanish Civil Code [1889]) Art. 101 in the same class as marriages with underage parties and persons already married, among others. A partys mental capacity was not a ground for divorce under the Divorce Law of 1917, (Act No. 2710 [1917]) but a marriage where either party was of unsound mind at the time the Marriage Law of 1929. (Act No. 3613 [1929], Section 30[c]). Divorce on the ground of a spouses incurable insanity was permitted under the divorce law enacted during the Japanese occupation. (Executive Order No. 141 [1943], Sec. 2[5]). Upon the enactment of the Civil Code as a voidable marriage, the mental capacity, or lack thereof, of the marrying spouse was not among the grounds for declaring a marriage void ab initio. (Art. 80, NCC). Similarly among the mar-

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riages classified as voidable under Article 45(2) of the Family Code is one contracted by a party of unsound mind. Such cause for the annulment of marriage is recognized as a vice of consent, just like any insanity on consent freely given which is one of the essential requisites of a contract. The initial common consensus on psychological incapacity under Article 36 of the Family Code was that it did not constitute a specie of vice of consent. Justices Sempio-Diy and Caguioa, both members of the Family Code revision committee that drafted the Code, have opined that psychological incapacity is not a vice of consent, and conceded that the spouse may have given free and voluntary consent to a marriage but was nonetheless incapable of fulfilling such rights and obligations. Dr. Tolentino likewise stated in the 1990 edition of his commentaries on the Family Code that this psychological incapacity to comply with the essential marital obligations does not affect the consent to the marriage. (A. Tolentino, Civil Code of the Philippines, Commentaries and Jurisprudence, 274-275 [1990 ed.]). There were initial criticisms of this original understanding of Article 36 as phrased by the Family Code committee. Tolentino opined that psychologically incapacity to comply would not be judicially different from physical incapacity of consummating the marriage, which makes the marriage only voidable under Article 45(5) of the Civil Code x x x [and thus] should have been a cause for annulment of the marriage only. At the same time, Tolentino noted [it] would be different if it were psychological incapacity to understand the essential marital obligations, because then this would amount to lack of consent to the marriage. These concerns though were answered., beginning with Santos v. Court of Appeals, wherein the Court, through Justice Vitug, acknowledged that psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage. The notion that psychological incapacity pertains to the inability to understand the obligations of marriage, as opposed to a mere inability to comply with them, was further affirmed in the Molina case. Therein, the Court through then Justice (now Chief Justice) Panganiban observed that [t]he evidence [to establish psychological incapacity] must convince the Court that the parties, or one of them, was mentally or physically ill to such extent that the person could not have known the obligations he was assuming, or

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knowing them, could not have given valid assumption thereto. Jurisprudence since then has recognized that psychological incapacity is a malady so grave and permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. (Marcos v. Marcos, 397 Phil. 840 [2000]). It might seem that this present understanding of psychological incapacity deviates from the literal wording of Article 36 of the Family Code, with its central phase reading psychologically incapacitated to comply with the essential marital obligations and marriage. At the same time, it has been consistently recognized by this Court that the intent of the Family Code committee was to design the law as to allow some resiliency in its application, by avoiding specific examples that would limit the applicability of the provision under the principle of ejusdem generis. Rather, the preference of the revision committee was for the judge to interpret the provision on a case-to-case basis, guided by experience, in the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon Law. (Salita v. Magtolis, G.R. No. 106429, June 13, 1994, 233 SCRA 100). It was likewise observed in Republic v. Dagdag: Whether or not psychological incapacity exists in a given case calling for annulment (should be nullity) of a marriage depends crucially, more than in any field of the law, on the facts of the case. Each case must be judged, not on the basis of prior assumptions, predilections or generalizations but according to its own facts. In regard to psychological incapacity as a ground for annulment of (should be nullity) marriage, it is right to say that no case is on all fours with another case. The trial judge must take pains in examining the factual milieu and the Appellate Court must, as much as possible, avoid substituting its own judgment for that of the trial court. (G.R. No. 109975, February 9, 2001, 351 SCRA 425 citing Republic v. CA, 268 SCRA 198 [1997]). The Court thus acknowledges that the definition of psychological incapacity, as intended by the revision committee, was not cast in intractable specifics. Judicial understanding of psychological incapacity may be informed by evolving standards, taking into

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account the particulars of each case, current trends in psychological and even canonical thought, and experience. It is under the auspices of the deliberate ambiguity of the framers that the Court has developed the Molina rules, which have been consistently applied since 1997. Molina has proven indubitably useful in providing a unitary framework that guides courts in adjudicating petitions for declaration of nullity under Article 36 of the Family Code. At the same time, the Molina guidelines are not set in stone, the clear legislative intent mandating a case-to-case perception of each situation, and Molina itself arising from this evolutionary understanding of Article 36 of the Family Code. There is no cause to disavow Molina at present, and indeed the disposition of this case shall rely primarily on that precedent. There is need though to emphasize other perspectives as well which should govern the disposition of petitions for declarations of nullity under Article 36 of the Family Code. Of particular notice has been the situation of the Court, first in Santos then in Molina, of the considered opinion of Canon Law experts in the interpretation of psychological incapacity. This is but unavoidable, considering that the Family Code committee has bluntly acknowledged that the concept of psychological incapacity was derived from Canon Law, and as one of the members admitted, enacted as a solution to the problem of marriages already annulled by the Catholic Church but still existent under Civil Law. It would be disingenuous to disregard the influence of Catholic Church doctrine in the formulation and subsequent understanding of Article 36, and the Court has expressly acknowledged that interpretations given by the National Appellate Matrimonial Tribunal of the local Church, while not controlling or decisive, should be given great respect by our courts. Still, it must be emphasized that the Catholic Church is hardly the sole source of influence in the interpretation of Article 36. Even though the concept may have been derived from Canon Law, its incorporation into the Family Code and subsequent judicial interpretation occurred in wholly secular progression. Indeed, while Church thought on psychological incapacity is merely persuasive on the trial courts, judicial decisions of this Court interpreting psychological incapacity are binding on lower courts. Now is also an opportune time to comment on another common legal guide utilized in the adjudication of petitions for declaration of nullity under Article 36. All too frequently, this Court and lower courts, in denying petitions of the kind, have favorably cited Sections 1 and 2, Article XV of the Constitution, which respectively state that [t]he State recognizes the Filipino family as the foundation of

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the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development, and that marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. These provisions highlight the importance of the family and the constitutional protection accorded to the institution of marriage. But the Constitution itself does not establish the parameters of state protection to marriage as a social institution and the foundation of the family. It remains the province of the legislature to define all legal aspects of marriage and prescribe the strategy and the modalities to protect it, based on whatever socio-political influences it deems proper, and subject of course to the qualification that such legislative enactment itself adheres to the Constitution and the Bill of Rights. This being the case, it also falls on the legislature to put into operation the constitutional provisions that protect marriage and the family. This has been accomplished at present through the enactment of the Family Code, which defines marriage and the family, spells out the corresponding legal effects, imposes the limitations that affect married and family life, as well as prescribes the grounds for declaration of nullity is reflective of the constitutional mandate to protect marriage, such action in fact merely enforces a statutory definition of marriage, not a constitutionally ordained decree of what marriage is. Indeed, if circumstances warrant, Sections 1 and 2 of Article XV need not be the only constitutional considerations to be taken into account in resolving a petition for declaration of nullity. Indeed, Article 36 of the Family Code, in classifying marriages contracted by a psychologically incapacitated person as a nullity, should be deemed as an implement of this constitutional protection of marriage. Given the avowed State interest in promoting marriage as the foundation of the family, which in turn serves as the foundation of the nation, there is a corresponding interest for the State to defend against marriages ill-equipped to promote family life. Void ab initio marriages under Article 36 do not further the initiatives of the State concerning marriage and family, as they promote wedlock among persons who, for reasons independent of their will, are not capacitated to understand or comply with the essential obligations of marriage. The parameters on psychological capacity have not been defined by the framers of the Family Code. What constitutes it depends upon circumstances of each case. In short, each case gives the Court an opportunity to determine whether the evidence presented would

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warrant the declaration of nullity of marriage on the ground of psychological capacity. Such situation arose in a case where the man alleged that the wife cheated him on her true personality, such that, the acts of cheating were so deep that dimmed her capacity to comply with her marital duties. As a prelude in rendering a judgment nullifying the marriage, the Supreme Court said: Statistics never lie, but lovers often do, quipped a sage. This sad truth has unsettled many a love transformed into matrimony. Any sort of deception between spouses, no matter the gravity, is always disquieting. Deceit to the depth and breadth unveiled in the following pages, dark and irrational as in the modern noir tale, dims any trace, of certitude on the guilty spouses capability to fulfill the marital obligations even more. Case: Leonilo Antonio vs. Marie Ivonne F. Reyes G.R. No. 155800, March 10, 2006 (Tinga, J.) Facts: Leonilo and Ivonne got married barely a year after their meeting. They begot three children. Leonilo filed a complaint for declaration of nullity of their marriage on the ground of psychological incapacity claiming that Ivonne lied about herself, the people around her, her occupation, income, educational attainment and other events or things, to wit: 1. She concealed the fact that she previously gave birth to an illegitimate son, and instead introduced the boy to petitioner as the adopted child of her family. She only confessed the truth about the boys parentage when petitioner learned about it from other sources after their marriage. She fabricated a story that her brother-in-law, Edwin David, attempted to rape and kill her when in fact, no such incident occurred. She misrepresented herself as a psychiatrist to her obstetrician, and told some of her friends that she gradu-

2.

3.

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ated with a degree in psychology, when neither was true. 4. She claimed to be a singer or a free-lance voice talent affiliated with Blackgold Recording Company (Blackgold); yet, not a single member of her family ever witnessed her alleged singing activities with the group. In the same vein, she postulated that a luncheon show was held at the Philippine Village Hotel in her honor and even presented an invitation to that effect but he discovered per certification by the Director of Sales of said hotel that no such occasion had taken place. She invented friends named Babes Santos and Via Marquez, and under those names, sent lengthy letters to him claiming to be from Blackgold and touting her as the number one moneymaker in the commercial industry worth P12 million. He later found out that she herself was the one who wrote and sent the letters to him when she admitted the truth in one of their quarrels. He likewise realized that Babes Santos and Via Marquez were only figments of her imagination when he discovered they were not known in or connected with Blackgold. She represented herself as a person of greater means, thus, she altered her payslip to make it appear that she earned a higher income. She bought a sala set from a public market but told him that she acquired it from a famous furniture dealer. She spent lavishly on unnecessary items and ended up borrowing money from other people on false pretexts. She exhibited insecurities and jealousies over him to the extent of calling up his officemates to monitor his whereabouts. When he could no longer take her unusual behavior, he separated from her in August 1991. He tried to attempt a reconciliation but since her behavior did not change, he finally left her for good in November 1991.

5.

6.

7.

In support of his petition, he presented Dr. Dante Herrera Abcede (Dr. Abcede), a psychiatrist, and Dr. Arnulfo V. Lopez (Dr. Lopez), a clinical psychologist, who stated, based on the tests they conducted, that he was essentially a normal, introspective, shy and conservative type of person. On the other hand, they observed that her persistent and constant lying to him was abnormal or pathologi-

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cal. It undermined the basic relationship that should be based on love, trust and respect. They further asserted that her extreme jealousy was also pathological. It reached the point of paranoia since there was no actual basis for her to suspect that he was having an affair with another woman. They concluded that she was psychologically incapacitated to perform her essential marital obligations. In opposing the petition, she claimed that she performed her marital obligations by attending to all the needs of her husband. She asserted that there was no truth to the allegation that she fabricated stories, told lies and invented personalities. She presented her version, thus: 1. 2. She concealed her child by another man from petitioner because she was afraid of losing her husband. She told petitioner about Davids attempt to rape and kill her because she surmised such intent from Davids act of touching her back and ogling her from head to foot. She was actually a BS Banking and Finance graduate and had been teaching psychology at the Pasig Catholic School for two (2) years. She was a free-lance voice talent of Aris de las Alas, an executive producer of Channel 9 and she had done three (3) commercials with McCann Erickson for the advertisement of Coca-cola, Johnson & Johnson, and Traders Royal Bank. She told petitioner she was a Blackgold recording artist although she was not under contract with the company, yet she reported to the Blackgold office after office hours. She claimed that a luncheon show was indeed to be held in her honor at the Philippine Village Hotel on 8 December 1979. She vowed that the letters sent to petitioner were not written by her and the writers thereof were not fictitious. Bea Marquez Recto of the Recto political clan was a resident of the United States while Babes Santos was employed with Saniwares. She admitted that she called up an officemate of her husband but averred that she merely asked the latter in a diplomatic manner if she was the one asking for chocolates from him, and not to monitor her husband whereabouts.

3.

4.

5.

6.

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She presented a doctor who made the conclusion based on studies that her regressive behavior, gross neuroticism, psychotic tendencies and poor control of impulses which are signs of disabling trends were not elicited from her, hence, she is not psychologically incapacitated to comply with her duties to the marriage bond. After trial, the lower court declared her psychologically incapacitated to fulfill her marital duties due to her fantastic ability to invent and fabricate stories and personalities as this enabled her to live in a world of make-believe. This rendered her incapable of giving meaning and significance to her marriage. Before trial, the Metropolitan Tribunal of the Archdiocese of Manila annulled the Catholic marriage of the spouses on the ground of lack of due discretion on the part of the parties. While the case was pending in the CA, the Metropolitan Tribunals ruling was affirmed by the National Appellate Matrimonial Tribunal which held that it was only Ivonne who was impaired by lack of due discretion. The decision was upheld by the Roman Rota of the Vatican. He alerted the CA of this decision. The CA however ruled that the totality of the evidence was insufficient to declare her psychologically incapacitated. Leonilo appealed to the Supreme Court which relied upon the ruling in Republic vs. CA (also known as the Molina case), in reversing the CA and declaring her as psychologically incapacitated to comply with her duties to the marriage bond. The Supreme Court Held: First: Leonilo had sufficiently overcome the burden in proving the psychological incapacity of his spouse. He presented witnesses to corroborate his allegations on his wifes behavior. He presented witnesses who testified on her aberrant behavior which was tantamount to psychological incapacity. Second: The root cause of her psychological incapacity has been medically or clinically identified, and incurable. Third: Her psychological incapacity was established to have clearly existed at the time of and even before the celebration of their marriage. She fabricated friends and put the husband in the dark about the real parentage of her child. Fourth: The gravity of the psychological incapacity is sufficient to prove her disability to assume the essential obligations of marriage. It is immediately discernible that the parties had shared only a little over a year of cohabitation before the exasperated petitioner

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left his wife. Whatever such circumstance speaks of the degree of tolerance of Leonilo, it likewise supports the belief that Ivonnes psychological incapacity was so grave in extent that any prolonged marital life was dubitable. The lies attributed to her were not adopted as false pretenses to induce Leonilo into marriage with her. They indicate a failure on her part to distinguish truth from fiction or at least abide by the truth. A person unable to distinguish between fantasy and reality would be unable to comprehend the legal nature of the marital bond, much less its psychic meaning and the corresponding obligations to marriage, including parenting. One unable to adhere to reality cannot be expected to adhere as well to any legal or emotional commitments. Fifth: She is evidently unable to comply with her duties to the marriage bond defined in Articles 68 to 71 of the Family Code more specifically to live together, observe mutual love, respect and fidelity, and render mutual help and support. It is difficult to see an inveterate pathological liar to be able to commit to the basic tenets of relationship between spouses based on love, trust, and respect. Sixth: The CA failed to consider the fact that their marriage has been nullified by the Catholic church. It deemed it inconsequential, but such act is in contravention of Molina which held that interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church of the Philippines, while not controlling, should be given weight and respect by the courts. Whether a person declared psychological incapable can still remarry. A person who has been declared psychologically incapacitated may still remarry. In Antonio vs. Reyes, the Supreme Court even recognized the grave character of the psychological incapacity of the woman to the end that the judgment of the Roman Rota of the Vatican appended to its judgment declaring the woman as psychologically incapacitated a restrictive clause to the sentence of nullity prohibiting her from contracting another marriage without the Tribunals consent. The restrictive clause states: A restrictive clause is herewith attached to this sentence of nullity to the effect that the respondent may not

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enter into another marriage without the express consent of this Tribunal, in deference to the sanctity and dignity of the sacrament of matrimony, as well as for the protection of the interided spouse. This clearly implies that a person who is psychologically incapacitated may contract marriage again. The reason is that, there is no such thing as absolute psychological incapacity. It is only relative, in the sense that one may be incapacitated with respect to one partner, but not necessarily with respect to all. Article 37. Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate: (1) Between ascendants and descendants of any degree; and

(2) Between brothers and sisters, whether of the full or half blood. (81a) Rules on incestuous marriages. (1) The law declares void incestuous marriages. There are reasons, like: (a) Science and experience have established beyond cavil that such intermarriages very often result in deficient and degenerate offspring which, occuring to any great extent, would amount to a serious deterioration of the race (Am. Jur. Vol. 35, pp. 256-266); It is abhorrent to the nature of man and not only to civilized men, but also to barbarous and semi-civilized people; and It tends to confuse rights incident to the family relations.

(b)

(c) (2)

When the law speaks of incestuous marriages, the same refer to marriages of persons who are closely related by blood in the direct line, whether legitimate or illegitimate. The reason for the invalidity of these marriages is that, incestuous marriages debase the family, violate morals and decency. In the Philippines, such marriages are generally frowned upon by society and there is strong public opin-

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ion against legalizing them. (Tolentino, Civil Code, Book I, 1974 ed., p. 256). Hence, if a grandfather marries a granddaughter, the marriage is void because it is incestuous. The same would also be true even if the relationship is illegitimate. (3) Brothers and sisters cannot marry; otherwise, the marriage is void. The rule is true whether the relationship is that of full or half blood or legitimate or illegitimate. Even if they get married abroad and it is valid there as such, the same is also void. What determines the capacity of the person to marry is his national law. (See Article 15, New Civil Code). This is especially true because of Article 5 of the New Civil Code which provides that acts executed against the provisions of mandatory or prohibitory laws shall be void.

Article 38. The following marriages shall be void from the beginning for reasons of public policy: (1) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree; (2) (3) (4) Between step-parents and stepchildren; Between parents-in-law and children-in-law; Between the adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the adopted child; (6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) Between adopted children of the same adopter; and

(9) Between parties where one, with the intention to marry the other, killed that other persons spouse, or his or her own spouse. (82a) The law speaks of void marriages by reason of public policy, as public policy frowns upon those who are closely related by blood or artificial relationship from marrying each other.

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Collateral relatives within the fourth civil degree. Relatives within the fourth civil degree or first cousins cannot legally marry. The marriage is void even if the relationship is legitimate or illegitimate. A marriage of first cousins is not sanctioned by Filipino custom and is, moreover, injurious to the healthy development of the race. (Report of the Code Commission Civil Code). Illustration: X is the legitimate son of A and B. Y is the legitimate daughter of C and D. A and C are brothers. X and Y are legitimate first degree cousins. Under the law, they cannot get married. Otherwise, the marriage is void by reason of public policy. But suppose the relationship is illegitimate where A is the legitimate son of F and G, and C is the illegitimate daughter of A with another woman. Then A marries T and they have a son D. C marries S and they have daughter E. D and E have an illegitimate relationship, but they are first degree cousins, hence, the law prohibits them from marrying, otherwise, the marriage is void ab initio. Step-parents and stepchildren. A and B are married. They have a son X. When B died, A married C. Then A died, C and X got married. Definitely, their marriage is void because it is a marriage between a stepmother and a stepson. The invalidity of the marriage is based on morals and good customs. In fact, it is void by reason of public policy. Parents-in-law and Children-in-law. A and B are married. They have a son X, who married Y. B and X died. Y and A cannot contract a valid marriage because they are in-laws. Marriage between a parent-in-law and a child-in-law is void by reason of public policy. Void by reason of adoption. A and B are married. They adopted X. When A died, B and X wanted to get married. They cannot, otherwise, the marriage is void,

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as they have the relationship of adopting parent and adopted child. While the relationship is artificial, yet, the law is founded on public policy as the adopted child has the same rights as that of a legitimate child. The rule is true even if A in the above-cited example is single. He cannot marry his adopted daughter by reason of public policy. The rule is likewise applicable if X got married to Y and X would die. A cannot marry Y, the surviving spouse of X, since a surviving spouse of the adopted cannot marry the adopter. Still, the marriage is void if it is between the legitimate child of A and B and X, because X has been elevated to the status of a legitimate child. So, it is as if X and the legitimate child of A and B are brothers and sisters. Still, that is abhorred by law and public policy. Suppose A and B adopted X and Y, still, the latter cannot get married because the law prohibits the marriage of both adopted children. They are elevated to the status of legitimates; hence, it is as if they are now brothers and sisters. Void by reason of intent to kill. A and B are married. A wants to marry X, so he killed his wife B. Thereafter, A married X. The marriage is void by reason of public policy. It is not only contrary to law, but it is also contrary to public policy to kill another. The rule is also applicable if, A would kill Y, the spouse of X. The reason is the same. The law prohibits parties where one, with the intent to marry the other, killed the other persons spouse or his or her own spouse. If the killing is accidental, the law does not apply and the marriage is valid. However, if the killing is intentional, the marriage is void. To allow such marriage would promote criminality, where it would be easy to eliminate ones spouse and get married with another. It would also promote immorality. Article 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (As amended by R.A. No. 8533).

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Action to declare a void marriage void is imprescriptible. If the marriage is void, an action for the declaration of its nullity does not prescribe. A defense based thereon does not also prescribe. This is similar to Article 1410, New Civil Code, where the law says that an action or defense based on the nullity of a contract does not prescribe. In Wiegel vs. Judge Sempio-Diy (143 SCRA 499), it was ruled that a subsequent marriage of one of the spouses of a prior void marriage is itself void if it is contracted before a judicial declaration of nullity of the previous marriage. Prior to R.A. No. 8533, where the marriage was contracted under the Civil Code, i.e., before the effectivity of the Family Code, an action to declare it void on the ground of psychological incapacity of one of the parties prescribes in ten (10) years after the effectivity of the Family Code. The general rule is that, if a contract is void, there is no use to have it declared void. This used to be the jurisprudential law. (People vs. Aragon, 100 Phil. 1033). But later on it was said that even if a marriage is void, there is a need to have it declared void because no one should decide for himself the invalidity of his marriage. A court proceeding should be conducted to have it declared void. Then later on, the rule was reinstated that there is no need for a void marriage to be declared void. Article 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n) There is a need to have a void marriage declared void; reasons; rules. It does not follow that if a marriage is void, the spouses can just remarry. This new provision of the law requires that for purposes of remarriage, the previous void marriage must first be declared void. This is actually a reproduction of the doctrine in Wiegel vs. SempioDiy (143 SCRA 499), where the Supreme Court ruled that even if the marriage is void, there is still a need for the declaration of nullity. The history of the rule that a void marriage must first be declared void before a party may contract a subsequent marriage can be traced from the old case of People vs. Aragon, 100 Phil. 1033, where

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it was ruled that where the marriage is void from its performance, no judicial decree is necessary to establish its validity. Later on, the Supreme Court in Wiegel vs. Sempio-Diy, 143 SCRA 499, said that there is a need to declare a void marriage void since the parties cannot decide for themselves the invalidity of their marriage. In Yap vs. Paras, 145 SCRA 229, the Supreme Court reverted to the Aragon doctrine that there is no need to declare null and void a void marriage. The present law, Article 40 of the Family Code requires that the absolute nullity of a previous marriage be declared as it is solely on the basis of a final judgment declaring such previous marriage void, that a party can remarry. The rule in Article 40 of the Family Code reaffirms the rule that even if the marriage is void, there has yet to be a judgment declaring it void, for it is solely on the basis of that final judgment that a party can remarry. But remarriage is not the sole purpose of declaration of nullity of a marriage, as it can be declared void for other purposes. In Roberto Domingo vs. CA, et al., G.R. No. 104818, September 17, 1993, 44 SCAD 955, Delia and Roberto were married. Unkown to Delia, Roberto was previously married to Emerlinda dela Paz; hence, she filed a petition for declaration of nullity of the second marriage as Emerlinda sued them for bigamy. Roberto was unemployed and totally dependent upon Delia as she was working in Saudi Arabia. In one of her vacations, she discovered that he was cohabiting with another woman and that he was disposing their properties without her consent. Roberto filed a Motion to Dismiss on the ground that the petition stated no cause of action it being superfluous and unnecessary, their marriage being void. The motion was denied. Instead of answering, he filed a special civil action for certiorari and mandamus which the Court of Appeals dismissed. One issue raised before the SC, was: Whether or not a petition for judicial declaration of a void marriage is necessary. If in the affirmative, whether the same should be filed only for purposes of remarriage. Held: Yes, it is necessary. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a defense. (Article 39, Family Code). Where the absolute nullity of a previous marriage is sought to be invoked for purposes of contradict-

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ing a second marriage, the sole basis acceptable in law for said projected marriage to be free from legal infirmity is a final judgment declaring the previous marriage void. (Article 40, Family Code). In fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her first marriage, the person who marries again cannot be charged with bigamy. (See also Terre vs. Terre, 211 SCRA 6 [1992]). It is the theory of the petitioner that the petition for declaration of nullity of the marriage is for the purpose of remarriage only, such that failure to allege this purpose will warrant the dismissal. Article 40 of the Family Code provides: The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n) Crucial to the proper interpretation of Article 40 is the position in the prohibition of the word solely. As it is placed, the same shows that it is meant to qualify final judgment declaring such previous marriage void. Realizing the need for careful craftsmanship in conveying the precise intent of the Committee members, the provision in question, as it finally emerged, did not state The absolute nullity of a previous marriage maybe invoked solely for purposes of remarriage ......, in which case solely would clearly qualify the phrase for purposes of remarriage. Had the phraseology been such, the interpretation of petitioner would have been correct and, that is, that the absolute nullity of a previous marriage maybe invoked solely for purposes of remarriage, thus rendering irrelevant the clause on the basis solely of a final judgment declaring such previous marriage void. That Article 40 as finally formulated included the significant clause denotes that such final judgment declaring the previous marriage void need not be obtained only for purpose of remarriage. Undoubtedly, one can conceive of other instances where a party might well invoke the absolute nullity of a previous marriage for purposes other than remarriage, such as in case of an action for liquidation, partition, distribution and separation of property between the erst-

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while spouses, as well as an action for the custody and support of their common children and the delivery of the latters presumptive legitimes. In such cases, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void. Hence, in the instance where a party who has previously contracted a marriage which remains subsisting desires to enter into another marriage which is legally unassailable, he is required by law to prove that the previous one was an absolute nullity. But this he may do on the basis solely of a final judgment declaring such previous marriage void. The interpretation of the petitioner is quite restrictive. His position that private respondents failure to state in the petition that the same is filed to enable her to remarry will result in the dismissal of the petition is untenable. This misconstruction was anticipated by the Code Committee, thus: That the law seeks to ensure that a prior marriage is no impediment to a second sought to be contracted by one of the parties may be gleaned from new information required in the Family Code to be included in the application for a marriage license, viz., If previously married, how, when and where the previous marriage was dissolved and annulled. Reverting to the case before us, petitioners interpretation of Article 40 of the Family Code is, undoubtedly, quite restrictive. Thus, his position that private respondents failure to state in the petition that the same is filed to enable her to remarry will result in the dismissal of S.P. No. 1989-J is untenable. His misconstruction of Article 40 resulting from the misplaced emphasis on the term solely was in fact anticipated by the members of the Committee Dean Gupit commented that the word only maybe construed to refer to for purposes of remarriage. Judge Diy stated that only refers to final judgment. Justice Puno suggested that they say on the basis only of a final judgment. Professor Baviera suggested that they use the legal term solely instead of only which the Committee approved. In the case of Domingo vs. CA, there was a mistaken notion that the only or sole purpose of declaration of nullity of a marriage

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is for remarriage purposes. The Supreme Court, as can be gleaned from the case cited, answered it in the negative. It can be for other purposes. Void marriage must be declared void. The case of Susan Nicdao Cario vs. Susan Yee Cario, G.R. No. 132529, February 2, 2001 is a case where a policeman married twice. The first marriage was contracted without a marriage license. Then, he contracted another marriage without the first having been declared void. Following earlier rulings, the Supreme Court said that the second marriage is void. Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. However, for purposes other than remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the death of the parties thereto, so long as it is essential to the determination of the case. (Nial vs. Bayadog, G.R. No. 133778, March 14, 2000). In such instances, evidence must be adduced. Necessity of Judicial Declaration of Nullity of Marriage. The judicial declaration of nullity of marriage is not intended solely for remarriage. It can be declared void for other purposes. Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Meaning, where the absolute nullity of a previous marriage is sought to be invoked for the purpose of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring the previous marriage void. For other purposes, such as but not limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the death of the parties thereto and even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. In such cases,

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the marriage may still be declared void. (Nial, et al. vs. Bayadog, G.R. No. 133738, March 14, 2000). In such instances, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. Judicial declaration of nullity of previous void marriage. Case: Terre vs. Terre 211 SCRA 6, July 2, 1992 Facts: Complainant was married to her first cousin. Respondent was a law student and single. He courted her notwithstanding his knowledge that she is married. When complainant explained that nothing will come out of their relationship since she was married, respondent clarified that her marriage was void ab initio since she and her first husband were first cousins. Convinced by his explanation and having secured favorable advice from her mother and ex-in-laws, she agreed to marry him. In their marriage license, despite complainants objection, respondent wrote single as her status, explaining that since her marriage was void ab initio, there was no need to go to court to declare it as such. A child was born out of their union. Respondent subsequently disappeared. All through their married state up to the time of respondents disappearance, complainant supported him, in addition to the allowance the latter was getting from his parents. Complainant was unaware of the reason for respondents disappearance until she found out later that he married a certain H.M. Complainant filed an administrative case for disbarment against respondent who invoked the invalidity of his marriage with the complainant as his defense. Rule on the merit of his defense. Held: When the second marriage was entered into, respondents prior marriage with complainant was subsisting, no judicial action having been initiated or any judicial declaration obtained as to the nullity of such prior marriage of respondent with complainant. Respondent sought to defend himself by claiming that he had believed in good faith that his prior marriage with complainant was

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null and void ab initio and that no action for a judicial declaration of nullity was necessary. The Court considers this claim on the part of the respondent as a spurious defense. In the first place, respondent has not rebutted complainants evidence as to the basic facts which underscore the bad faith of the respondent. In the second place, that pretended defense is the same argument by which he had inveigled complainant into believing that her prior marriage being incestuous (now contrary to public policy under Article 38, Family Code) and void ab initio, she was free to contract a second marriage with the respondent. Respondent, being a lawyer, knew or should have known that such an argument ran counter to the prevailing case law of this Court which holds that for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential. (Gomez vs. Lipan, 33 SCRA 615 [1970]; Vda. de Consuegra vs. GSIS, 37 SCRA 316 [1971]; Wiegel vs. Hon. Sempio-Diy, 143 SCRA 499 [1986]). This rule has been cast into statutory form by Article 40 of the Family Code. (E.O. No. 209, dated 6 July 1987). Even if we were to assume, arguendo merely, that respondent held that mistaken belief in good faith, the same result will follow. For if we are to hold respondent to his own argument, his first marriage to complainant must be deemed valid, with the result that his second marriage to H.M. must be regarded as bigamous and criminal in character. Reason for the law. The reason behind the rule that even if the marriage is void, there is a need to have it declared void is because of the fact that the parties to the marriage cannot decide for themselves the invalidity of their marriage. This is especially so that no less than the Constitution seeks to preserve the sanctity of the marriage, it being the foundation of the family. More specifically, the Constitution provides: The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. x x x. (Art. II, Sec. 12, Constitution). In Antonio Valdez vs. RTC, Branch 102, Quezon City, et al., G.R. No. 122749, July 31, 1996, 72 SCAD 967, it was said that the

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declaration of nullity of a prior marriage is a rule that somehow recognizes the philosophy and an old doctrine that void marriages are inexistent from the very beginning and no judicial decree is necessary to establish their nullity. In now requiring for purposes of remarriage, the declaration of nullity by final judgment of the previously contracted void marriage, the present law aims to do away with any continuing uncertainty on the status of the second marriage. Note that the general rule is that, if a contract is void, it is non -existent. It creates no rights, it establishes no obligations. But the law treats marriage differently as it says that it is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (Article 1, Family Code). While in an ordinary contract, the parties can stipulate on terms and conditions within the bounds of law, morals and public policy (Article 1306, New Civil Code), yet, the parties to a marriage cannot stipulate on terms and conditions for the efficacy of their marriage, as it is the law that determines the same, except that they can stipulate on the kind of property relationship that would govern them during the marriage. While in an ordinary contract, the same is without effect if it is void. In a marriage, the law even recognizes the effects of a void marriage prior to the declaration of their nullity. Article 54 of the Family Code provides: Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory, shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate. The aforecited law clearly indicates that a marriage is not an ordinary contract. It should not be treated like an ordinary contract; that for as long as it has not been declared void, there are legal effects which must be recognized. Void marriage as a legal impediment to remarry. One question has been asked: If there is a prior existing marriage of A and B, but it is void, (a) can anyone of them just get mar-

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ried? (b) Is that void marriage a legal impediment to marry once again? (a) No. This is so because of the present rule that there is a need to have a void marriage declared void. In fact, Art. 39 of the Family Code provides that the action or defense for the declaration of absolute nullity of a previous marriage shall not prescribe. Furthermore, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (Art. 40, Family Code). It is therefore clear that even if a marriage is void, it must be declared void first because the parties cannot decide for themselves the invalidity of their marriage. In Donato vs. Luna, G.R. No. 53642, April 15, 1988, it was ruled that assuming that the first marriage was null and void on the ground alleged by the petitioner, the fact would not be material to the outcome of the criminal case. Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity is so declared can it be held as void. So long as there is no such declaration, the presumption is, the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy. (See Al Wiegel vs. SempioDiy, 143 SCRA 499; Atienza vs. Brillantes, Jr., A.M. No. MTJ-92708, March 29, 1995, 60 SCAD 119). (b) Yes. Since there is a need for a prior declaration of nullity of a void marriage that void marriage can be considered a legal impediment to contract a subsequent marriage because of the presumption of its validity prior to its declaration of nullity. Furthermore, the absolute nullity of a marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring the previous marriage void. (Art. 40, NCC). In Imelda Marbella-Bobis vs. Isagani D. Bobis, G.R. No. 138509, July 31, 2000, a man contracted a second marriage without his first marriage having been annulled, nullified or terminated. He even contracted a third marriage. In holding that the second and third marriages of the man were void, the Supreme Court held that Article 40 of the Family Code, which was effective at the time of the celebration of the second marriage, requires a prior judicial declaration of nullity of a previous marriage before a party may remarry. The clear implication of this is that it is not for the parties, particularly the accused, to determine the validity or invalidity of the mar-

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riage. (citing Nial vs. Bayadog, G.R. No. 133778, March 14, 2000). Whether or not the first marriage was void for lack of license is a matter of defense because there is still no judicial declaration of its nullity at the time the second marriage was contracted. It should be remembered that bigamy case can successfully be prosecuted provided all its elements concur two of which are a previous marriage and a subsequent marriage which would have been valid had it not been for the existence at the material time of the first marriage. (citing People vs. Dumpo, 62 Phil. 246; Sulu Islamic Association vs. Malik, 44 SCAD 576, 226 SCRA 193; Merced vs. Diaz, 109 Phil. 155). In Vincent Paul Mercado vs. Consuelo Tan, G.R. No. 137110, August 1, 2000, Dr. Mercado got married to Consuelo Tan, but at the time of the marriage, he was already married to Ma. Thelma Oliva. He was charged with the crime of bigamy. During the pendency of the criminal case he filed an action for declaration of nullity of the marriage with Ma. Thelma Oliva. At the time of the second marriage, no decree has been issued for the declaration of nullity of the first marriage. It was only during the pendency of the action for bigamy that he filed the action for declaration of nullity. There was a declaration of nullity of the first marriage later, hence, he contended that it is deemed not to have transpired at all. Is the contention correct? Explain. Held: No. A judicial declaration of nullity of a previous marriage is necessary before a subsequent marriage may be celebrated. If the second marriage is celebrated without first obtaining such judicial declaration the violator is guilty of bigamy. This principle applies even if the earlier union is characterized by statute as void. To be sure, jurisprudence regarding the need for a judicial declaration of nullity of the previous marriage has been characterized as conflicting. (Domingo vs. CA, 226 SCRA 572). In People vs. Mendoza, 95 Phil. 845, a bigamy case involving an accused who married three times, the Supreme Court ruled that there was no need for such declaration. In that case, the accused contracted a second marriage during the subsistence of the first. When the first wife died, he married for the third time. The second wife then charged him with bigamy. Acquitting him, the Supreme Court held that the second marriage was void ab initio because it had been contracted while the first marriage was still in effect. Since the second mar-

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riage was obviously void and illegal, the Supreme Court said that there was no need for a judicial declaration of its nullity. Hence, the accused did not commit bigamy when he married for the third time. This ruling was affirmed by the Supreme Court in People vs. Aragon, 100 Phil. 1033, which involved substantially the same facts. But in subsequent cases, the Supreme Court impressed the need for a judicial declaration of nullity. In Vda. De Consuegra vs. GSIS, 37 SCRA 315, Jose Consuegra married for the second time while the first marriage was still subsisting. Upon his death, the Supreme Court awarded one half of the proceeds of his retirement benefits to the first wife and the other half to the second wife and her children, notwithstanding the manifest nullity of the second marriage. The Supreme Court held that and with respect to the right of the second wife, this Court observes that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of such nullity. (See also Gomez vs. Lipana, 33 SCRA 615). In Tolentino vs. Paras, 122 SCRA 525, however, the SC again held that judicial declaration of nullity of a void marriage was not necessary. In that case, a man married twice. In his Death Certificate, his second wife was named as his surviving spouse. The first wife then filed a petition to correct the said entry in the Death Certificate. The SC ruled in favor of the first wife, holding that the second marriage that he contracted with the second wife during the lifetime of the first spouse is null and void from the beginning and of no force and effect. No judicial decree is necessary to establish the invalidity of a void marriage. In Wiegel vs. Sempio-Diy, 143 SCRA 499, the SC stressed the need for such declaration. In that case, Karl Heinz Wiegel filed an action for the declaration of nullity of his marriage to Lilia Oliva Wiegel on the ground that the latter had a prior existing marriage. After the pre-trial, Lilia asked that she be allowed to present evidence to prove, among others, that her first husband had previously been married to another woman. In holding that there was no need for such evidence, the Supreme Court ruled: x x x There is likewise no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs, according to this Court, a judicial declaration of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel; x x x

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Subsequently, in Yap vs. CA, 145 SCRA 229, the Supreme Court reverted to the ruling in People vs. Mendoza, holding that there was no need for such declaration of nullity. In Domingo vs. CA, 226 SCRA 572, the issue raised was whether a judicial declaration of nullity was still necessary for the recovery and the separation of properties of erstwhile spouses. Ruling in the affirmative, the SC declared: The Family Code has settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense; in fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her first marriage, the person who marries again cannot be charged with bigamy. Unlike Mendoza and Aragon, Domingo as well as the other cases herein cited was not a criminal prosecution for bigamy. Nonetheless, Domingo underscored the need for a judicial declaration of nullity of a void marriage on the basis of a new provision of the Family Code, which came into effect several years after the promulgation of Mendoza and Aragon. In Mendoza and Aragon, the Supreme Court relied on Section 29 of Act No. 3613 (Marriage Law), which provided: Illegal marriages. Any marriage subsequently contracted by any person during the lifetime of the first spouse shall be illegal and void from its performance, unless: (a) The first marriage was annulled or dissolved;

(b) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or the absentee being generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, the marriage as contracted being valid in either case until declared null and void by a competent court. The Supreme Court held in those two cases that the said provision plainly makes a subsequent marriage contracted by any person during the lifetime of his first spouse illegal and void from its

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performance, and no judicial decree is necessary to establish its invalidity, as distinguished from mere annullable marriages. (People vs. Mendoza, 95 Phil. 845). The provision appeared in substantially the same form under Article 83 of the 1950 Civil Code and Article 41 of the Family Code. However, Article 40 of the Family Code, a new provision, expressly requires a judicial declaration of nullity of the previous marriage, as follows: Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such marriage void. In view of this provision, Domingo stressed that a final judgment declaring such marriage void was necessary. Verily, the Family Code and Domingo affirm the earlier ruling in Wiegel. Thus, a Civil Law authority and member of the Civil Code Revision Committee has observed: Article 40 is also in line with the recent decisions of the Supreme Court that the marriage of a person may be null and void but there is need of a judicial declaration of such fact before that person can marry again; otherwise, the second marriage will also be void. (Wiegel vs. SempioDiy, August 19, 1986, 143 SCRA 499, Vda. De Consuegra vs. GSIS, 37 SCRA 315). This provision changes the old rule that where a marriage is illegal and void from its performance, no judicial decree is necessary to establish its validity. (People vs. Mendoza, 95 Phil. 843; People vs. Aragon, 100 Phil. 1033). In this light, the statutory mooring of the ruling in Mendoza and Aragon that there is no need for a judicial declaration of nullity of a void marriage has been cast aside by Article 40 of the Family Code. Such declaration is now necessary before one can contract a second marriage. Absent that declaration, one may be charged with and convicted of bigamy. The present ruling is consistent with the pronouncement in Terre vs. Terre, 211 SCRA 6, which involved an administrative complaint against a lawyer for marrying twice. In rejecting the lawyers argument that he was free to enter into a second marriage because the first one was void ab initio, the SC ruled for purposes of determining whether a person is legally free to contract a second mar-

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riage, a judicial declaration that the first marriage was null and void ab initio is essential. The Supreme Court further noted that the said rule was cast into statutory form by Article 40 of the Family Code. Significantly, it observed that the second marriage, contracted without a judicial declaration that the first marriage was void, was bigamous and criminal in character. Moreover, Justice Reyes, an authority in Criminal Law whose earlier work was cited by petitioner, changed his view on the subject in view of Article 40 of the Family Code and wrote that a person must first obtain a judicial declaration of the nullity of a void marriage before contracting a subsequent marriage: It is now settled that the fact that the first marriage is void from the beginning is not a defense in a bigamy charge. As with a voidable marriage, there must be a judicial declaration of the nullity of a marriage before contracting the second marriage. Article 40 of the Family Code states that x x x. The Code Commission believes that the parties to a marriage should not be allowed to assume that their marriage is void, even if such is the fact, but must first secure a judicial declaration of nullity of their marriage before they should be allowed to marry again. x x x In the instant case, petitioner contracted a second marriage although there was yet no judicial declaration of nullity of his first marriage. In fact, he instituted the petition to have the first marriage declared void only after complainant had filed a letter-complaint charging him with bigamy. By contracting a second marriage while the first was still subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code. That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat, the crime had already been consummated by then. Moreover, his view effectively encourages delay in the prosecution of bigamy cases where an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. The Court cannot allow that. Under the circumstances he was found guilty of the charge against him. (See also Ofelia Ty vs. CA, et al., G.R. No. 127406, November 27, 2000).

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Issue of prejudicial question; action for declaration of nullity of marriage not prejudicial in bigamy. The aforesaid principle was restated because of the issue of prejudicial question that the respondent raised. When he was sued for bigamy, he filed an action for the judicial declaration of absolute nullity of his first marriage on the ground that it was celebrated without a marriage license. He then filed a motion to suspend the proceedings in the bigamy case invoking the pendency of the civil action for nullity of the first marriage. The trial court granted the motion. When the motion for reconsideration was denied, petitioner filed a petition for certiorari arguing that respondent should have first obtained a judicial declaration of nullity of his first marriage before entering into the second marriage, inasmuch as the alleged prejudicial question justifying suspension of the bigamy case is no longer a legal truism pursuant to Article 40 of the Family Code. In short, the issue is whether the subsequent filing of a civil action for declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal case for bigamy. The Supreme Court said that a prejudicial question is one which arises in a case the resolution of which is a logical antecedent of the issue involved therein. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. It must appear not only that the civil case involves facts upon which the criminal action is based, but also that the resolution of the issues raised in the civil action would necessarily be determinative of the criminal case. Consequently, the defense must involve an issue similar or intimately related to the same issue raised in the criminal action and its resolution determinative of whether or not the latter action may proceed. Its two essential elements are: 1. 2. The civil action involves an issue similar or intimately related to the issue raised in the criminal action; and The resolution of such issue determines whether or not the criminal action may proceed.

A prejudicial question does not conclusively resolve the guilt or innocence of the accused but simply tests the sufficiency of the allegations in the information in order to sustain the further prosecution of the criminal case. A party who raises a prejudicial question is deemed to have hypothetically admitted that all the essential elements of a crime have been adequately alleged in the in-

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formation, considering that the prosecution has not yet presented a single evidence on the indictment or may not yet have rested its case. A challenge of the allegations in the information on the ground of prejudicial question is in effect a question of merits of the criminal charge through a non-criminal suit. Article 40 of the Family Code, which was effective at the time of the celebration of the second marriage, requires a prior judicial declaration of nullity of a previous marriage before a party may remarry. The clear implication of this is that it is not for the parties